                                                     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 of New Jersey v. Gene Hinton (A-3/4-12) (070386)

Argued May 14, 2013 -- Decided October 24, 2013

PATTERSON, J., writing for a majority of the Court.

         In this appeal, the Court determines whether, following execution of a warrant of removal in an eviction
proceeding, a defendant has a constitutionally protected reasonable expectation of privacy in an apartment he
previously shared with his mother.

         Until her death in March 2009, defendant Gene Hinton’s mother was the tenant in an apartment owned by
the Newark Housing Authority. Although Hinton had his mother’s consent to reside in the apartment, he did not
have a lease or any other documents identifying him as a tenant. On an unknown date, the landlord commenced a
summary dispossession action, and a warrant of removal was issued on March 31, 2009. On April 6, when no one
answered his knock, Special Civil Part Officer Ricardo Pratt served the warrant by placing it under the apartment
door. The warrant warned that any persons were required to vacate the premises by April 10, at which time a court
officer would remove any remaining persons and the landlord could remove all property from the apartment and
repossess it. It further explained that the tenant could attempt to stop execution by applying to the court for relief.

         On April 13, one week after serving the warrant, Pratt performed a non-payment of rent eviction, searching
the apartment to ensure that it was safe and there were no fire hazards or hidden occupants. When checking the
bedroom, Pratt saw a “wide open” shoe box in the middle of the bed containing what he believed to be illegal drugs,
as well as two bags containing a large amount of money and more envelopes of drugs. Pratt alerted the Newark
Police Department, had the locks changed, and waited outside for officers to arrive. Although the warrant of
removal did not authorize the officers to search the apartment, they entered and identified the drugs as heroin.
Hinton arrived and explained that he lived in the apartment alone since his mother’s death. After confirming that he
owned the shoe box, Hinton was arrested.

          Hinton moved to suppress his statements to the police, as well as the evidence seized from the apartment.
The trial court denied the motion, holding that Pratt’s actions were not governmental in nature and the officers had
probable cause to conduct a search based on Pratt’s reliable citizen informant tip. Although it did not address
whether Hinton had a reasonable expectation of privacy, it found that the State’s actions fell within the plain view
exception to the warrant requirement. Hinton was convicted of third degree possession of a controlled dangerous
substance and possession with intent to distribute and was sentenced to two years of probation.

          Hinton appealed his conviction and sentence, arguing that: (1) his motion to suppress the seized evidence
should have been granted; (2) his statements to police were improperly admitted; (3) the court’s verdict was against
the weight of the evidence; and (4) his sentence should be modified. The Appellate Division agreed that Pratt’s
entry into the apartment did not raise constitutional issues, but determined that Hinton had a reasonable expectation
of privacy in the premises. The panel explained that execution of the warrant of removal did not terminate Hinton’s
ownership interest, and he retained access to potential legal remedies such as a stay. Therefore, the officers
conducted an improper warrantless search. Without reaching Hinton’s other arguments, the panel reversed the
denial of his suppression motion and his conviction. The Court granted the State’s petition for certification and
Hinton’s cross-petition, which preserved those issues not reached by the Appellate Division. 212 N.J. 106 (2012).

HELD: Where, as here, an eviction proceeding has advanced to the point that a warrant of removal has been
executed, a tenant does not have a reasonable expectation of privacy in the premises. Therefore, the police action in
Hinton’s apartment was not a “search” under either the Fourth Amendment of the United States Constitution or
Article I, Paragraph 7 of the New Jersey Constitution.
1. New Jersey’s Anti-Eviction Act authorizes removal of tenants from property for reasons including nonpayment
of rent, and, along with the Tenant Hardship Act, establishes the steps for removal. The first step requires issuance
of a warrant of removal no earlier than three days following entry of a judgment for possession. In accordance with
the Fair Eviction Notice Act, the warrant must provide notice of the tenant’s right to apply for a stay, the method for
execution of the warrant, and the procedures under which the landlord may remove the tenant’s property. Once the
warrant is issued, it may not be executed for another three days. After expiration of this second three-day period, a
court officer may remove the tenant and any other persons from the premises. Where, as here, a warrant of removal
is issued for nonpayment of rent, the tenant is on notice during the second three-day period that dispossession,
including a lockout, may be imminent. Although the Special Civil Part retains jurisdiction for ten days to hear any
application by the tenant for lawful relief, the tenant’s status has fundamentally changed once this pivotal stage in
the process is reached. (pp. 16-21)

2. When the Court reviews a ruling applying legal principles to factual findings, it defers to the factual findings but
reviews de novo application of the legal principles. Turning first to the question of whether Hinton’s rights were
violated under the Fourth Amendment to the United States Constitution, the Court notes that consideration of an
objection to the admission of evidence obtained by a search or seizure requires a threshold determination of whether
the challenged search or seizure violated the defendant’s reasonable expectation of privacy. To that end, the United
States Supreme Court dispensed with a separate standing inquiry and implemented a two-pronged inquiry regarding
the extent of a defendant’s rights under the Fourth Amendment, asking whether: (1) the defendant manifested a
subjective expectation of privacy in the object of the search; and (2) the expectation of privacy was reasonable. A
tenant’s reasonable expectation of privacy can hinge on his or her legal status following an eviction. Here, assuming
defendant satisfies the first prong, he fails to make a showing on the second prong. When Hinton left the apartment
on April 13, 2009, he was on notice that a court officer could enter, restore control of the premises to the landlord,
and prohibit Hinton’s access. Thus, any reasonable expectation of privacy Hinton may have had in the apartment
was terminated at this stage of the eviction proceeding. (pp. 21-28)

3. Article I, Paragraph 7 of the New Jersey Constitution similarly protects individuals from warrantless searches of
homes. Unlike federal law, New Jersey law confers automatic standing on a defendant to object to the admission of
seized evidence where, as here, the defendant is charged with an offense in which possession is an essential element
of guilt. However, Hinton’s automatic standing to file a suppression motion does not necessarily equate to a finding
that he had a substantive right of privacy which would mandate grant of his motion. Rather, since the merits of the
motion rest on whether Hinton possessed a reasonable expectation of privacy in the premises, that issue must be
addressed as part of the substantive constitutional analysis. (pp. 28-33)

4. Unlike the federal two-pronged test, New Jersey law only requires that the expectation of privacy be reasonable.
New Jersey courts have found that the reasonableness of a defendant’s expectation of privacy in a particular
premises turns in large part on his or her legal right to occupy it. Here, as of the date of the search, Hinton had been
on notice for a week that an eviction proceeding was pending and had reached a pivotal stage. During that time, he
never sought court intervention. At that point, any expectation of privacy on Hinton’s part was unreasonable. Thus,
under the particular circumstances of this case, the police action was not a search for purposes of the federal or State
constitution. However, because this conclusion does not entirely resolve the question of whether the trial court
properly denied Hinton’s motion to suppress, the matter must be remanded to the Appellate Division for
consideration of Hinton’s challenge with respect to the seizure of the disputed evidence, as well as the other issues
that were not previously addressed by the Appellate Division. (pp. 33-40)

         The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate
Division for further proceedings in accordance with the Court’s opinion.

         JUSTICE ALBIN, DISSENTING, joined by JUDGE RODRÍGUEZ, expresses the view that a
defendant who possesses automatic standing to object to a search under New Jersey law should not be required to
clear another layer of standing by establishing a reasonable expectation of privacy, and that such a requirement
contravenes New Jersey case law and could lead to confusion if expanded beyond the novel scenario in this case.

     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join in JUSTICE
PATTERSON’s opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUDGE
RODRÍGUEZ (temporarily assigned) joins. JUDGE CUFF (temporarily assigned) did not participate.

                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                       A-3/4 September Term 2012
                                                 070386

STATE OF NEW JERSEY,

    Plaintiff-Appellant
    and Cross-Respondent,

         v.

GENE HINTON,

    Defendant-Respondent
    and Cross-Appellant.


         Argued May 14, 2013 – Decided October 24, 2013

         On certification to the Superior Court,
         Appellate Division.

         Emily R. Anderson, Deputy Attorney General,
         argued the cause for appellant (Jeffrey S.
         Chiesa, Attorney General of New Jersey,
         attorney).

         Matthew Astore, Deputy Public Defender,
         argued the cause for respondent (Joseph E.
         Krakora, Public Defender, attorney; Mr.
         Astore and Anthony J. Cariddi, Designated
         Counsel, on the briefs).

         Alexander R. Shalom argued the cause for
         amicus curiae American Civil Liberties Union
         of New Jersey Foundation (Edward L. Barocas,
         Legal Director, attorney).

    JUSTICE PATTERSON delivered the opinion of the Court.

    In this appeal, the Court determines whether, after a court

officer executed a warrant of removal that had been issued in an

eviction proceeding, defendant Gene Hinton had a


                                1
constitutionally protected reasonable expectation of privacy in

the apartment he had previously shared with his mother.

    In March 2009, defendant’s mother, the legal tenant of the

apartment, died.    On a date not revealed in the record, the

apartment’s owner, evidently unaware of the tenant’s death,

instituted an action to summarily dispossess her for nonpayment

of rent.    The eviction action proceeded and the court issued a

warrant of removal pursuant to N.J.S.A. 2A:18-57.       The warrant

directed a court officer to dispossess the tenant and restore

full possession of the apartment to the landlord after the

expiration of a three-day grace period.       The warrant further

ordered the tenant to immediately vacate the premises pending an

imminent dispossession.   A week after the warrant was left at

the apartment, a court officer entered the apartment to conduct

a safety inspection and change the locks.      During the

inspection, the court officer saw a shoe box containing

envelopes of heroin and a bag of currency on the bed in

defendant’s bedroom.    He summoned police.    Upon their arrival,

police officers entered the apartment without a warrant and

seized the shoe box.    Officers arrested defendant upon his

arrival at the apartment.

    Defendant was indicted for several drug possession

offenses.   Prior to trial, he moved to suppress the evidence

found at the apartment.    The trial court denied the motion to

                                  2
suppress and, after a bench trial, convicted defendant of two

third-degree offenses.    The Appellate Division reversed

defendant’s conviction.   It held that defendant had a reasonable

expectation of privacy in his mother’s apartment and that the

police had conducted a warrantless search that violated

defendant’s constitutional right against unreasonable search and

seizure.   We granted the parties’ cross-petitions for

certification.

    We reverse the Appellate Division’s judgment.     We hold that

at the advanced stage to which the eviction had proceeded,

defendant did not have a reasonable expectation of privacy under

federal or state constitutional norms.    Defendant was served

with official notice that a court officer would soon enter the

premises and repossess it on the landlord’s behalf.      If,

notwithstanding that notice, defendant maintained a subjective

expectation of privacy in the apartment and the items in

dispute, his expectation was objectively unreasonable.

Accordingly, the officers did not conduct a search prohibited by

the Fourth Amendment to the United States Constitution or

Article I, Paragraph 7 of the New Jersey Constitution.

    We remand the matter to the Appellate Division for

consideration of the constitutionality of the officers’ seizure

of the disputed evidence and for review of the other issues



                                  3
raised by defendant that the panel did not determine in light of

its earlier judgment.

                                  I.

    The factual record considered by the trial court and

reviewed on appeal was developed in the May 25, 2010 suppression

hearing conducted by the trial judge.    The State presented three

witnesses: Special Civil Part Officer Ricardo Pratt of the

Superior Court of New Jersey, Newark Police Officer Carmen

Rivera and Newark Police Sergeant Thomas Roe.    Defendant did not

testify or present witnesses at the hearing.

    The setting of this case was an apartment owned by the

Newark Housing Authority.   Defendant’s mother, Essie Hinton, was

the “occupant or at least the lease holder” of the apartment

from an undetermined date until her death in March 2009.     On a

date that is not revealed in the record, the landlord commenced

a summary dispossession action.    On March 31, 2009, a Superior

Court judge issued a warrant of removal with respect to the

Hinton apartment, addressed to Ms. Hinton as “tenant.”     The

warrant of removal instructed a Special Civil Part Officer to

“dispossess the tenant and place the landlord in full possession

of the premises.”   It directed the officer to “remove all

persons and property from the . . . premises within three days

after receiving this warrant.”    The warrant also advised of the

consequences of the failure to vacate: “[i]f you fail to move

                                  4
within three days, a court officer will thereafter remove all

persons from the premises at any time between the hours of 8:30

A.M. and 4:30 P.M.” on April 10, 2009, and, “[t]hereafter, your

possessions may be removed by the landlord, subject to

applicable law (N.J.S.A. 2A:18-72 et seq.).”   The warrant of

removal further instructed the tenant:

         You may be able to stop this warrant and
         remain in the premises temporarily if you
         apply to the court for relief.       You may
         apply for relief by delivering a written
         request to the Clerk of the Special Civil
         Part and to the landlord or landlord’s
         attorney.   Your request must be personally
         delivered and received by the Clerk within
         three days after this warrant was served or
         you may be locked out. Before stopping this
         warrant, the court may include certain
         conditions, such as the payment of rent.

The warrant provided that only a court officer could execute it,

and barred a landlord “to padlock or otherwise block entry to a

rental premises while a tenant who lives there is still in legal

possession.”

    On April 6, 2009, Special Civil Part Officer Pratt served

the warrant.   He “gave the tenant or the defendant, the owner of

the apartment, Ms. [Essie] Hinton . . . 72 hours[’] notice from

April 6th of 2009 and she was to vacate the apartment by April

10th, 2009.”   Special Civil Part Officer Pratt served the

warrant by placing it under the door, his customary practice

when a resident fails to respond to a knock on the door.


                                 5
Special Civil Part Officer Pratt knew of no tenant other than

Ms. Hinton, whose name was listed on the warrant.   He testified

that defendant’s name was not associated with the apartment.

    Special Civil Part Officer Pratt further testified that

when he confronts a situation in which a tenant does not vacate

the premises within three days after service of a warrant of

removal, his practice is “to go there and remove any persons

within the apartment so that [he] may change locks and . . .

place the landlord in possession of the apartment.”       In addition

to padlocking the door, Special Civil Part Officer Pratt’s

routine is to “go through the entire apartment.”    His

responsibility is “to check under the beds, . . . check inside

the closets, and . . . make sure there[ are] no fire hazards or

any persons hiding in the apartment.”    Although the warrant

permits the landlord to remove property inside the apartment,

Special Civil Part Officer Pratt’s “authorization has nothing to

do with the property inside the apartment other than making sure

that it’s safe” and verifying there are “no fire hazards.”

    Special Civil Part Officer Pratt followed that practice on

the afternoon of April 13, 2009, one week after he served the

notice at the Hinton apartment.   He performed what he

characterized as a “non-payment-of-rent eviction for Newark

Housing Authority.”    Special Civil Part Officer Pratt signed and

dated the warrant.    He went to the apartment with a repairman,

                                  6
who was given keys to the building by the building manager and

was assigned to change the locks.      Special Civil Part Officer

Pratt entered the apartment and initially determined that the

living room and bathroom were clear.      He proceeded to the

bedroom, where he “saw a shoe box in the middle of the bed”

containing what he thought were illegal drugs.       Special Civil

Part Officer Pratt testified that in the “wide open” shoe box

“there was one of these packages that was opened[ a]nd some of

the little envelopes that [he] recognize[d] as heroin [were]

spilling out into the shoe box.”       Furthermore, Special Civil

Part Officer Pratt testified that there were more envelopes in a

blue bag and another bag with “a large amount of currency” on

the bed.

    Special Civil Part Officer Pratt called the Newark Police

Department and told them what he had found.      He then instructed

the repairman to continue to change the locks.       When that job

was completed, Special Civil Part Officer Pratt locked the door,

left the apartment and waited outside for the officers to

arrive.

    Officer Rivera, with Officer Ana Colon, responded to

Special Civil Part Officer Pratt’s call within five to ten

minutes.   They knew from the phone call that Special Civil Part

Officer Pratt had found what he thought to be drugs inside the

apartment and their “purpose was to verify that it was true.”

                                   7
When Officers Rivera and Colon arrived, Special Civil Part

Officer Pratt informed them that “he had a warrant to padlock

the door due to the fact that . . . the resident had passed,

died two weeks prior.”    Special Civil Part Officer Pratt

explained to the officers that he had entered the apartment “to

ensure that there . . . were no animals or persons inside before

he padlocked the door,” and that in the course of his inspection

“he came across the shoe box containing [heroin] and money.”        He

showed the officers the warrant of removal, which did not

authorize them to search the apartment.    By Officer Rivera’s

admission, the officers had sufficient time to obtain a search

warrant because the lock on the apartment had been changed by

the time they arrived.    They did not, however, obtain a warrant

before their entry into the apartment.

       Special Civil Part Officer Pratt opened the apartment door

and showed Officers Rivera and Colon the shoe box and bag on the

bed.   According to Officer Rivera, the officers observed heroin

wrapped in bundles of magazine paper.    The officers summoned

their supervisor, Sergeant Rodriguez.     When Sergeant Rodriguez

arrived at the scene, he examined the box and identified the

contents as heroin.    Defendant’s niece arrived and informed the

officers that defendant had been living in the apartment.

Officer Colon contacted Sergeant Roe, advising him that they

found “narcotics and currency . . . inside the apartment.”       When

                                  8
Sergeant Roe arrived, the other police officers were waiting in

the hallway with Special Civil Part Officer Pratt.

     At that moment, defendant arrived.       He “pointed at the

apartment as being his,” and asked, “what’s going on?      What’s

going on?   This is my place.”   After identifying himself,

Special Civil Part Officer Pratt advised defendant that he was

serving a warrant of removal and was there to padlock the door.

Sergeant Rodriguez asked whether anyone lived or stayed in the

apartment with defendant, and defendant responded that his

mother had recently passed away and that he currently lived

alone.   Defendant admitted that he had neither a lease nor other

paperwork identifying him as a tenant of the apartment.

Sergeant Roe did not request or obtain defendant’s permission to

enter the premises.   Sergeant Roe testified that “according to

the Housing Authority, there was no bona fide resident” of the

apartment, in light of Ms. Hinton’s recent death.

     Accompanied by Sergeants Rodriguez and Roe and Special

Civil Part Officer Pratt, defendant entered the apartment and

approached the items on the bed.       Defendant confirmed that the

room was his bedroom and that he was the owner of the shoe box

on the bed.   He was taken to the living room of the apartment

and arrested.1


1
  Defendant testified at the bench trial. He told the court that
he was fifty years old. He testified he had lived in the
                                   9
                               II.

    Defendant was indicted for third-degree possession of a

controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1),

second-degree possession of CDS with intent to distribute,

N.J.S.A. 2C:35-5(b)(2), third-degree possession of CDS with

intent to distribute within 1000 feet of school property,

N.J.S.A. 2C:35-7, and second-degree possession of CDS with

intent to distribute within 500 feet of a public housing

facility, park or building, N.J.S.A. 2C:35-7.1.   He

unsuccessfully sought admission into pre-trial intervention

(PTI), and, subsequently, the case proceeded to trial.

    Defendant moved to suppress his statements to the police

and the drugs and related items seized from the apartment.

Following the evidentiary hearing at which the trial judge


apartment, which was in a senior citizens’ building, for six
years with his mother’s consent and with the knowledge of the
building manager, and that his nephew also frequented the
apartment. He admitted that he received notice of the warrant
of removal about four days prior to the April 13, 2009 lockout.
He stated on the morning of April 13, 2009, he went to court in
an unsuccessful attempt to try to stop the eviction proceeding.
He said that he had confirmed with the building manager that the
rent was current. Defendant testified that he was handcuffed
outside of the apartment and escorted inside, and that he had
confirmed his ownership of the shoe box although he did not know
at the time that it contained heroin. He denied ever having
seen or possessed heroin. Because defendant’s testimony was not
before the trial judge when he decided the motion to suppress,
it is not part of the record reviewed in this appeal. See State
v. Carvajal, 202 N.J. 214, 219 n.1 (2010) (considering only
stipulated facts for review of motion to suppress); State v.
Mai, 202 N.J. 12, 17-18 (2010) (limiting review of facts to
those “adduced before [the court] at the suppression hearing”).
                               10
elicited the factual record set forth above, the court denied

the motion to suppress.    It held that Special Civil Part Officer

Pratt’s actions were not governmental action for purposes of the

constitutional analysis because Special Civil Part Officer Pratt

was a private individual conducting a court-authorized action.

The court then found that, under the totality of the

circumstances, the police officers had probable cause to conduct

a search because Special Civil Part Officer Pratt was a citizen

informant and provided a reliable tip, and that the officers

conducted a fluid and unplanned investigation in response to

that tip.   The court did not determine whether defendant had a

reasonable expectation of privacy that was violated by the

officers’ entry into the apartment or whether a warrant was

required for that entry.   It concluded that the plain view

doctrine did not apply because the initial observation of the

evidence was made by a private citizen, not one of the police

officers.   Nevertheless, the court found the State’s actions

fell within the plain view exception to the warrant requirement.

The court also denied defendant’s motion to suppress the

statements that he made to the police, holding that the

officers’ questioning was only a field inquiry that did not

implicate Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16

L. Ed. 2d 694 (1966).



                                 11
    At his bench trial, defendant’s strategy was to deny that

the heroin found by Special Civil Part Officer Pratt was his.

Defendant’s counsel argued that when defendant identified the

box on the bed as his, he did not see the heroin and was unaware

of its presence.   Defense counsel emphasized that defendant’s

nephew shared access to the apartment and suggested that the

drugs belonged to defendant’s nephew, not defendant.

    The trial judge rejected this argument.    He found

defendant’s testimony to be inconsistent and found the State’s

witnesses to be more credible.   The judge found that the heroin

and money were in defendant’s possession for purposes of

distribution, given the quantity of both.   He convicted

defendant of third-degree possession of CDS and third-degree

possession of CDS with intent to distribute.   The trial judge

denied defendant’s motion for a new trial and affirmed the

prosecutor’s denial of defendant’s renewed application for PTI.

    Prior to sentencing defendant, the trial judge merged the

possession offense into the distribution offense.   Finding no

aggravating factors but considering several mitigating factors,

including defendant’s age, lack of a prior criminal record, lack

of a history of substance abuse, and stable employment, the

trial judge sentenced defendant to two years of probation.

    Defendant appealed his conviction and sentence.       He argued

that his motion to suppress the heroin and money should have

                                 12
been granted.   He also challenged the admission of his

statements to police, argued that the trial judge’s verdict was

against the weight of the evidence, and sought modification of

his sentence.

    The Appellate Division reversed the trial court’s denial of

defendant’s motion to suppress the drugs and money and,

accordingly, reversed his conviction.     The panel agreed with the

trial court that Special Civil Part Officer Pratt’s entry into

the apartment raised no constitutional issues.     It found,

however, that defendant had a reasonable expectation of privacy

in the apartment and that the officers therefore conducted a

warrantless search.     The panel relied in part on defendant’s

testimony that he had his mother’s consent to remain in the

apartment and that the superintendent was aware of his presence

in his mother’s home.     It concluded that Special Civil Part

Officer Pratt’s execution of the warrant of removal and

installation of a new lock on the apartment did not terminate

defendant’s ownership interest in the premises.     The panel

explained that when the police entered the apartment defendant

still had access to potential legal remedies, such as a stay or

order vacating the writ of removal.     The panel reached an issue

not raised by the State -- whether exigent circumstances

justified the warrantless entry into the apartment -- and

concluded that no such circumstances existed.     The panel

                                  13
reversed the conviction on the evidentiary issue alone and did

not reach the other issues raised by defendant in his appellate

brief.

    We granted the State’s petition for certification.    212

N.J. 105 (2012).   We also granted defendant’s cross-petition for

certification, which preserves the trial and sentencing issues

that defendant raised but the Appellate Division did not decide.

212 N.J. 106 (2012).

                               III.

    The State argues that no search occurred in this case

because defendant had no constitutionally protected reasonable

expectation of privacy in an apartment in which he had no legal

right to live and from which he had been lawfully evicted.      It

asserts that in light of the notice to defendant that he was

required to vacate the premises and remove his property within

seventy-two hours -– a deadline that passed days before the

police entry -– defendant had no possessory interest or

reasonable expectation that the premises would remain private.

The State contends that, in light of the eviction, the lockout

of the apartment and the Newark Housing Authority’s assumption

of full control over the premises, the police officers’ entry

into the apartment did not offend federal or state

constitutional norms.   It justifies the seizure of the heroin

under the plain view exception to the warrant requirement,

                                14
arguing that the officers did not conduct a search of the

apartment but examined and confiscated evidence of a crime that

was plainly visible to them upon their lawful entry.

    Defendant counters that his reasonable expectation of

privacy in the apartment was unaffected by the pending eviction

proceedings or the lockout.   He argues that the State

exaggerates the impact of the landlord’s power to exclude, which

he characterizes as only one of several relevant factors.

Defendant argues that while remedies to the eviction were still

available to him, he retained his reasonable expectation of

privacy in the apartment notwithstanding the legal steps taken

by the landlord.   He contends that no recognized exception to

the warrant requirement governs this case.

    Amicus curiae American Civil Liberties Union of New Jersey

(ACLU) argues that defendant’s reasonable expectation of privacy

in the apartment survived as long as the courts retained

jurisdiction to grant defendant a remedy in the eviction

proceedings and the landlord was constrained by statute from

removing and disposing of the resident’s belongings.     ACLU

asserts that the legality of defendant’s residence in the

apartment is irrelevant because he lived there with the

permission of the legal tenant, his mother.

                                IV.



                                15
     The constitutional question under review arises in the

context of a public housing agency’s2 summary dispossess

proceedings, governed by the Anti-Eviction Act, N.J.S.A. 2A:18-

53 to -71, the Tenant Hardship Act, N.J.S.A. 2A:42-10.6 to -

10.9, the Fair Eviction Notice Act, N.J.S.A. 2A:42-10.15 to -

10.16, and the court rules.

     With exceptions that are inapplicable here, the Anti-

Eviction Act authorizes the removal of any “lessee or tenant or

the assigns . . . from any house, building, mobile home or land

in a mobile home park or tenement leased for residential

purposes.”   N.J.S.A. 2A:18-61.1.3   The statute defines grounds

for dispossession including, among others, failure “to pay rent

due and owing under the lease,” N.J.S.A. 2A:18-61.1(a),

disorderly conduct that, after notice to cease, “destroy[s] the

2
  The Newark Housing Authority “is a public housing agency
subject to the United States Housing Act of 1937 . . . and
regulations enacted pursuant thereto.” Hous. Auth. of Newark v.
Raindrop, 287 N.J. Super. 222, 225 (App. Div. 1996).
3
  The complaint in a summary dispossess action based upon
nonpayment of rent “must expressly state the owner’s identity,
the relationship of the plaintiff to the owner, [and] the amount
of rent owed as of the date of the complaint,” and must include
specific provisions for the tenant to pay the outstanding rent
prior to trial. R. 6:3-4(c). The complaint must be served with
a summons that “shall conform with the requirements of R. 4:4-
2.” R. 6:2-1. Instead of “directing the defendant to file an
answer, the summons shall require the defendant to appear and
state a defense at a certain time and place, to be therein
specified, which time shall be not less than 10 days in summary
dispossess actions . . . nor more than 30 days from the date of
service of the summons, and shall notify the defendant that upon
failure to do so, judgment by default may be rendered for the
relief demanded in the complaint.” Ibid.
                                16
peace and quiet of the occupants or other tenants,” N.J.S.A.

2A:18-61.1(b), and substantial violation or breach of the terms

of the lease, N.J.S.A. 2A:18-61.1(e).   Jurisdiction to grant the

statutory remedy is contingent upon the existence of one or more

of these grounds for eviction.   Hous. Auth. of Morristown v.

Little, 135 N.J. 274, 281 (1994) (citing Levine v. Seidel, 128

N.J. Super. 225, 229 (App. Div.), certif. denied, 65 N.J. 570

(1974)).

     The statute confers jurisdiction upon the Superior Court,

Law Division, Special Civil Part to hear such cases, but they

can be tried before a jury upon transfer to the Law Division.

N.J.S.A. 2A:18-60, -61; R. 6:1-2(a)(3), :4-1(g).4   After the

entry of judgment of possession in favor of the landlord, the

Anti-Eviction Act and Tenant Hardship Act establish a series of

steps that must be taken in accordance with a strict timetable

before the landlord can dispossess the tenant.   The first step

is the issuance of a warrant of removal to enforce the judgment

for possession, issued absent “sufficient cause . . . shown to

the contrary when the action comes on for trial.”   N.J.S.A.

2A:18-57.   The warrant commands an officer of the court “to

remove all persons from the premises, and to put the claimant


4
  When, as in this case, the grounds for the action to dispossess
the tenant is nonpayment of rent, the landlord is not required
to serve a demand upon the tenant or give notice to the tenant
before filing the action. N.J.S.A. 2A:18-61.2.
                                 17
into full possession thereof.”   Ibid.     The warrant may not be

issued “until the expiration of 3 days after the entry of

judgment for possession.”   Ibid.     Thus, during this time, the

judgment does not yet empower a court officer to dispossess the

tenant or authorize the landlord to disturb the tenant’s

property.

    The Fair Eviction Notice Act also prescribes the content of

the warrant of removal.   The warrant must provide to the tenant:

(1) notice of his or her right “to apply to the court for a

stay” of the warrant’s execution, N.J.S.A. 2A:42-10.16(a); (2)

notice of the provision by which the warrant “[s]hall be

executed not earlier than the third day following the day of

personal service upon the tenant,” with weekends and court

holidays excluded, N.J.S.A. 2A:42-10.16(b); (3) notice regarding

the procedures by which a landlord may remove the tenant’s

property in accordance with the Abandoned Tenant Property

statute, N.J.S.A. 2A:18-72 to -84, N.J.S.A. 2A:42-10.16(e); and

(4) notice of the duties of law enforcement officers, N.J.S.A.

2A:42-10.16(e).

    The issuance of the warrant of removal triggers a second

three-day statutory period, during which the warrant may not be

executed.   N.J.S.A. 2A:42-10.16(b).     At the conclusion of that

second three-day period, the court officer may execute the

warrant, removing the tenant and any other persons present from

                                 18
the premises.   See ibid.   Once the warrant has been executed and

possession of the property is restored to the landlord, the

landlord may take action with respect to property left on the

premises, in compliance with the notice provisions and other

requirements of N.J.S.A. 2A:18-72 to -84.     In the setting here,

in which a warrant of removal had been issued for nonpayment of

rent, the tenant was on notice during this second three-day

period that dispossession, including a lockout with no further

notice, may be imminent.

    There is yet another significant statutory period.       After

the warrant is executed, the Special Civil Part retains

jurisdiction to hear an application by the tenant for “lawful

relief.”   N.J.S.A. 2A:42-10.16.    The Tenant Hardship Act affords

discretion to the judge overseeing a summary dispossess action

to stay the warrant of removal, should he or she deem such a

stay “proper under the circumstances,” for no longer than six

months after the entry of the judgment of possession.      N.J.S.A.

2A:42-10.6.   That provision “enables courts to grant

discretionary relief to tenants facing eviction.”     Little,

supra, 135 N.J. at 282.     “The Tenant Hardship Act has allowed

trial courts, within the limits of the statute, to mitigate the

harsh nature of the summary-dispossess procedure by postponing

for a limited time the execution of a warrant of removal if the

eviction presents a hardship to the tenant.”     Ibid.   Such a

                                   19
stay, however, is only available if the tenant pays all

outstanding rent and “the accrued costs of the action.”

N.J.S.A. 2A:42-10.6.   The tenant who fails to take timely action

has no remedy under that provision.   A court may also vacate a

judgment pursuant to Rule 4:50-1 if “a grave injustice would

occur.”   Little, supra, 135 N.J. at 289 (expounding that Rule

4:50-1 should be invoked “sparingly, in exceptional

situations”).

    The tenant also has appellate remedies.    Pressler &

Verniero, Current N.J. Court Rules, comment 2.1 on R. 6:3-4

(2013) (“[I]t is clear that since summary dispossess judgments

are now rendered by a constitutional rather than a statutory

court, they are fully appealable pursuant to R. 2:2-3(a)(1).”);

Little, supra, 135 N.J. at 280; Twp. of Bloomfield v. Rosanna’s

Figure Salon, Inc., 253 N.J. Super. 551, 558 (App. Div. 1992)

(reviewing for reversible error).

    Notwithstanding the continued jurisdiction of the Special

Civil Part to grant discretionary relief during the ten-day

period following the lockout, the tenant’s status has

fundamentally changed by the time he or she reaches that stage

of an eviction.   By executing the warrant for dispossession in

accordance with N.J.S.A. 2A:42-10.16, the court officer restores

control of the premises to the landlord.   Thereafter, the

landlord may exclude the tenant from the premises except for

                                20
limited purposes, such as to collect property pursuant to

arrangements made with the landlord.   See N.J.S.A. 2A:18-57, -

74(c).   Thus, under the Anti-Eviction Act and the Tenant

Hardship Act, the pivotal stage of the proceeding –- when the

landlord may assume exclusive control of the premises and

exclude the tenant from it -– occurs when the court officer is

authorized to execute the warrant following the three-day

waiting period prescribed by N.J.S.A. 2A:42-10.16(b).

                                V.

    We review the Appellate Division’s determination that on

April 13, 2009, defendant had a reasonable expectation of

privacy in the apartment where he had lived with his mother and

in his property located in that apartment.   We conduct that

review with substantial deference to the trial court’s factual

findings, which we “‘must uphold . . . so long as those findings

are supported by sufficient credible evidence in the record.’”

State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders,

192 N.J. 224, 243 (2007)).   Issues of law, in contrast, are

reviewed de novo.   Id. at 45; State v. Mann, 203 N.J. 328, 337

(2010); State v. Gandhi, 201 N.J. 161, 176 (2010).   When, as

here, we consider a ruling that applies legal principles to the

factual findings of the trial court, we defer to those findings

but review de novo the application of those principles to the

factual findings.   State v. Harris, 181 N.J. 391, 416 (2004).

                                21
     The Fourth Amendment to the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution guard

against warrantless searches of the home.   We first determine

whether defendant had a reasonable expectation of privacy under

the Fourth Amendment.

     Under federal law, a court considering an objection to the

admission at trial of evidence obtained by a search or seizure

must make a threshold determination: whether the challenged

search or seizure violated the defendant’s reasonable

expectation of privacy in the invaded location.   The current

constitutional benchmark was articulated in Rakas v. Illinois,

439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).    There,

the defendants contested the search of an automobile, in which

they were passengers, which revealed a weapon and ammunition in

which the defendants had no property interest.    Id. at 129-30,

99 S. Ct. at 423, 58 L. Ed. 2d at 392.   Affirming the

determination of Illinois trial and appellate courts that the

defendants lacked standing, the United States Supreme Court

rejected the defendants’ contention that under Jones v. United

States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960),5

defendants need only establish that they were “‘legitimately on


5
  While Rakas merely rejected the Jones standing proposition,
United States v. Salvucci, 448 U.S. 83, 85, 100 S. Ct. 2547,
2549, 65 L. Ed. 2d 619, 623-24 (1980), explicitly overruled
Jones’ automatic standing rule.
                               22
[the] premises’” in order to challenge the legality of a search

in a motion to suppress the fruits of that search.       Rakas,

supra, 439 U.S. at 129-30, 132-35, 99 S. Ct. at 423, 424-25, 58

L. Ed. 2d at 392, 394-95 (alteration in original).

    In Rakas, the Supreme Court dispensed with a separate

standing inquiry and adopted the “legitimate expectation of

privacy” analysis set forth in Justice Harlan’s concurring

opinion in Katz v. United States, 389 U.S. 347, 360-61, 88 S.

Ct. 507, 516, 19 L. Ed. 2d 576, 587-88 (1967) (Harlan, J.,

concurring), to determine the extent of a defendant’s Fourth

Amendment rights.   Rakas, supra, 439 U.S. at 138-39, 143, 99 S.

Ct. at 428, 430, 58 L. Ed. 2d at 398, 401.       The Supreme Court

concluded that “the better analysis forth-rightly focuses on the

extent of a particular defendant’s right under the Fourth

Amendment, rather than on any theoretically separate, but

invariably intertwined concept of standing.”       Id. at 139, 99 S.

Ct. at 428, 58 L. Ed. 2d at 398.       Under that analysis, the

Supreme Court rejected the defendants’ claim, holding that they

had established no reasonable expectation of privacy in a

vehicle in which they were passengers.       Id. at 148-49, 99 S. Ct.

at 433, 58 L. Ed. 2d at 404-05.

    Rakas was followed by Salvucci, in which the Court

confirmed that a defendant has Fourth Amendment protection if he

or she has a legitimate expectation of privacy in the place

                                  23
searched, whether or not he or she has a possessory interest in

the property seized in the course of the search.    Salvucci,

supra, 448 U.S. at 91-92, 100 S. Ct. at 2552-53, 65 L. Ed. 2d at

628; cf. Minnesota v. Carter, 525 U.S. 83, 90-91, 119 S. Ct.

469, 473-74, 142 L. Ed. 2d 373, 380-81 (1998) (holding no

reasonable expectation of privacy in another’s home when purpose

of visit was business and defendant thereby could not object to

seizure of evidence); United States v. Padilla, 508 U.S. 77, 81-

82, 113 S. Ct. 1936, 1938, 123 L. Ed. 2d 635, 640-41 (1993)

(explaining that coconspirators and codefendants can only object

to admission of seized evidence if their rights were violated by

search itself).

     As the United States Supreme Court noted in California v.

Ciraolo, a two-part inquiry governs the Fourth Amendment

analysis:

            The touchstone of Fourth Amendment analysis
            is whether a person has a “constitutionally
            protected     reasonable    expectation     of
            privacy.” [Katz, supra, 389 U.S. at 360, 88
            S. Ct. at 516, 19 L. Ed. 2d at 587 (Harlan,
            J., concurring).] Katz posits a two-part
            inquiry:    first,    has    the    individual
            manifested   a   subjective   expectation   of
            privacy in the object of the challenged
            search?    Second, is society willing to
            recognize that expectation as reasonable?

            [California v. Ciraolo, 476 U.S. 207, 211,
            106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210, 215
            (1986) (citing Smith v. Maryland, 442 U.S.
            735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d
            220, 226-27 (1979)); accord United States v.

                                 24
         Jones, 565 U.S. __, __, 132 S. Ct. 945, 954-
         55, 181 L. Ed. 2d 911, 924 (2012)
         (Sotomayor, J., concurring); Kyllo v. United
         States, 533 U.S. 27, 33, 121 S. Ct. 2038,
         2042-43, 150 L. Ed. 2d 94, 101 (2001).]

If a defendant does not meet his or her burden to demonstrate

both prongs of this test, he or she cannot challenge the

exclusion of the disputed evidence on Fourth Amendment grounds.

Florida v. Riley, 488 U.S. 445, 455, 109 S. Ct. 693, 699, 102 L.

Ed. 2d 835, 845 (1989) (O’Connor, J., concurring); Rawlings v.

Kentucky, 448 U.S. 98, 104-05, 100 S. Ct. 2556, 2561, 65 L. Ed.

2d 633, 641 (1980); Rakas, supra, 439 U.S. at 130 n.1, 99 S. Ct.

at 424 n.1, 58 L. Ed. 2d at 393 n.1.    We apply that two-pronged

standard here.   We consider only the limited information

presented at the suppression hearing.

    The first inquiry of the federal test -– whether the

individual manifested a subjective expectation of privacy in the

object of the challenged search -– is addressed only briefly in

the record of this case.   One of the police officers who

testified at the suppression hearing stated that defendant

identified the premises as “his” apartment, asking “what’s going

on” and calling the apartment “my place.”   The same witness,

however, testified that after Special Civil Part Officer Pratt

identified himself and advised defendant that the apartment was

subject to a warrant of removal and was about to be padlocked,



                                25
defendant admitted that he had no lease or other document that

would identify the apartment as his own.

    Assuming defendant satisfies the first prong of the two-

pronged federal analysis, he fails to make a showing on its

second prong.   Under federal law, a tenant’s reasonable

expectation of privacy can turn on his or her legal status in

the wake of an eviction.   In United States v. Curlin, 638 F.3d

562, 563 (7th Cir. 2011), the United States Court of Appeals for

the Seventh Circuit reviewed a trial court’s denial of a

suppression motion filed by a defendant who was the subject of

an eviction proceeding.    There, the defendant’s landlord twice

attempted to compel the defendant to appear in court to address

his failure to pay rent.   Ibid.    The landlord then obtained an

eviction order, which compelled defendant to vacate the premises

within three days and authorized an Indiana constable to restore

possession of the premises to the landlord.     Ibid.   After the

constable twice left copies of the order at Curlin’s residence,

he and assisting officers arrived at the residence to execute

the eviction order.   Ibid.   Upon their arrival, they notified

the defendant of their purpose and conducted a protective sweep

that revealed marijuana and guns in plain view.     Id. at 563-64.

The Court of Appeals held that in the wake of the eviction

proceedings, the defendant had no societally recognized

reasonable expectation of privacy:

                                   26
         [T]here is a key distinction in this case -–
         Curlin had no lawful right to be in the
         residence he was occupying on December 2,
         2008.    Curlin had been evicted over two
         weeks earlier following an action in Indiana
         court, and had been given notice of his
         eviction when officers twice left copies of
         the eviction order at the residence. Like a
         “burglar plying his trade in a summer cabin
         during the off season,” Curlin’s presence
         was   “wrongful,”    and   consequently   any
         subjective expectation of privacy he may
         have had is not “one that society is
         prepared to recognize as       ‘reasonable.’”
         Because Curlin had no legitimate expectation
         of privacy in the residence, no Fourth
         Amendment search occurred.

         [Id. at 565 (quoting Rakas, supra, 439 U.S.
         at 143 n.12, 99 S. Ct. at 430 n.12, 58 L.
         Ed. 2d at 401 n.12).]

    The Seventh Circuit’s sound reasoning in Curlin is equally

applicable to this case.   When defendant departed from the

apartment on April 13, 2009, he was on notice that a court

officer could enter the apartment, restore control to the

landlord and authorize a change of the locks that would deprive

defendant of unsupervised access to the apartment.   If defendant

ever had a societally recognized reasonable expectation of

privacy in the apartment when his mother was the tenant of the

apartment, any such expectation terminated at this late stage of

the eviction.   Given that defendant was served with notice that

the landlord’s eviction action had progressed to the point of an

imminent lockout, defendant did not have a societally recognized



                                27
expectation of privacy at the relevant time.6   Accordingly, under

federal law, defendant had no reasonable expectation of privacy

to contest the admission of the evidence in dispute.

                               VI.

     Like the Fourth Amendment, Article I, Paragraph 7 of our

State Constitution generally protects individuals from

warrantless searches of the home.    Under state law, a “defendant


6
  We do not reach the issue of whether defendant previously held
the status of a guest in the apartment leased to his mother
before the landlord instituted eviction proceedings or whether
such a status gave rise to a reasonable expectation of privacy
in the apartment in these circumstances. Under federal law, an
individual with no ownership or leasehold interest in a home
may, in some settings, have a reasonable expectation of privacy
in the premises, by virtue of his or her status as a guest of
the lawful owner or renter. See Minnesota v. Olson, 495 U.S.
91, 99, 110 S. Ct. 1684, 1689, 109 L. Ed. 2d 85, 95 (1990)
(holding overnight guests are “entitled to legitimate
expectation of privacy despite the fact that they have no legal
interest in the premises and do not have the legal authority to
determine who may or may not enter the household”); contra
Carter, supra, 525 U.S. at 90-91, 119 S. Ct. at 473-74, 142 L.
Ed. 2d at 380-81 (holding no reasonable expectation of privacy
in another’s home when purpose of visit was business and thereby
could not object to seizure of evidence). Similarly, a hotel
guest may have a reasonable expectation of privacy in a rental
room until his or her guest status has been terminated. See
United States v. Young, 573 F.3d 711, 716, 720-21 (9th Cir.
2009) (holding hotel guest retained reasonable expectation of
privacy in hotel room and property in room because he was not
properly evicted from room and hotel staff did not inform him he
was being evicted); United States v. Bautista, 362 F.3d 584, 590
(9th Cir. 2004) (concluding guest retains reasonable expectation
of privacy in hotel room unless occupancy has been lawfully
terminated). Whether defendant was a “guest” for Fourth
Amendment purposes when he lived with his mother in the
apartment is irrelevant because defendant no longer enjoyed that
status as of April 13, 2009, by virtue of the eviction
proceedings in this case.
                               28
must show that a reasonable or legitimate expectation of privacy

was trammeled by government authorities.”   State v. Evers, 175

N.J. 355, 368-69 (2003); see also State v. Reid, 194 N.J. 386,

396, 401 (2008) (finding reasonable expectation of privacy in

internet subscriber information); State v. Hempele, 120 N.J.

182, 200, 206 (1990) (finding reasonable expectation of privacy

in curbside garbage).

    Under state as well as federal constitutional norms, “[a]

warrantless search of a person’s home ‘must be subjected to

particularly careful scrutiny,’ because ‘physical entry of the

home is the chief evil against which the wording of the Fourth

Amendment is direct[ed].’”   State v. Cassidy, 179 N.J. 150, 160

(2004) (second alternation in original) (quoting State v. Bolte,

115 N.J. 579, 583, cert. denied, 493 U.S. 936, 110 S. Ct. 330,

107 L. Ed. 2d 320 (1989); State v. Hutchins, 116 N.J. 457, 463

(1989)); accord Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct.

1284, 1290, 157 L. Ed. 2d 1068, 1079 (2004); Kyllo, supra, 533

U.S. at 31, 121 S. Ct. at 2041-42, 150 L. Ed. 2d at 100; State

v. Vargas, 213 N.J. 301, 312-13 (2013); State v. Edmonds, 211

N.J. 117, 129 (2012).

    In addressing a defendant’s reasonable expectation of

privacy in a place searched, however, New Jersey jurisprudence




                                29
diverges from federal law in significant respects.7   Unlike

federal law, New Jersey law confers automatic standing on a

defendant “in cases where the defendant is charged with an

offense in which possession of the seized evidence at the time

of the contested search is an essential element of guilt.”

State v. Alston, 88 N.J. 211, 228 (1981).   In settings such as

this, where the defendant seeks to exclude evidence offered by

the State in his or her trial for a possessory offense, the

defendant’s standing to assert his or her rights under Article

I, Paragraph 7 of the New Jersey Constitution is beyond dispute.

Even when a defendant has automatic standing, if, as here, the

merits rest on whether defendant possesses a reasonable

expectation of privacy, the court must address that issue as

part of the substantive constitutional analysis.   That inquiry

is separate and distinct from the question of standing.     See,

e.g., State v. Harris, 211 N.J. 566, 589-90 (2012) (considering

and rejecting defendant’s argument that he had reasonable

expectation of privacy in firearm serial numbers entered by

officers into National Crime Information Center database); State

v. Stott, 171 N.J. 343, 355, 357-58 (2002) (determining


7
 The federal and state constitutional protections are not in
every respect coextensive; this Court has interpreted Article I,
Paragraph 7 of our State Constitution to provide protections
beyond those afforded by the Fourth Amendment. See, e.g.,
Hempele, supra, 120 N.J. at 195; State v. Mollica, 114 N.J. 329,
344 (1989).
                               30
involuntary patient at hospital had reasonable expectation of

privacy in his shared room); Hempele, supra, 120 N.J. at 200,

215 (finding persons have reasonable expectation of privacy in

contents of opaque trash bags left at curb for collection);

State v. Harris, 298 N.J. Super. 478, 484-85 (App. Div.)

(holding defendant who forcefully intruded into another’s

apartment had no reasonable privacy interest in premises as

recognized by general societal norms), certif. denied, 151 N.J.

74 (1997).

    As this Court has noted, “[a]lthough we do not use a

reasonable expectation of privacy analysis for standing purposes

in criminal cases, we do apply that analysis to determine

whether a person has a substantive right of privacy in a place

searched or an item seized.”   State v. Johnson, 193 N.J. 528,

547 (2008) (citing State v. McAllister, 184 N.J. 17, 32-33, 36

(2005); Hempele, supra, 120 N.J. at 198-200)).   While defendant

has automatic standing under Alston to seek suppression, in this

case we must nonetheless determine whether he had a reasonable

expectation of privacy in the premises –- as a substantive

matter of law – as part of the inquiry as to whether an unlawful

search occurred.   Johnson, supra, 193 N.J. at 547.

    Advancing an argument not made by defendant or the ACLU,

our dissenting colleague asserts that our holding contravenes

Alston and Johnson, by imposing what he characterizes as “an

                                31
extra layer of standing – a reasonable expectation of privacy

analysis” – upon this Court’s jurisprudence.    Post at ____ (slip

op. at 4-7).    Our colleague’s contention is unfounded.    We apply

the standing rule of Alston, in which the Court confirmed that a

defendant has automatic standing to object to the admission of

seized evidence if he or she is charged with an offense in which

possession of that evidence is an essential element.       88 N.J. at

228.    As the Court noted in Johnson, a defendant has automatic

standing under Alston and its progeny –- and may accordingly

seek suppression of evidence –- by virtue of the charge that he

or she possessed the item seized, whether or not the defendant

has a reasonable expectation of privacy in the area searched.

Johnson, supra, 193 N.J. at 545 (citations omitted).

       A defendant’s automatic standing to file a motion to

suppress, however, does not equate to a finding that he or she

has a substantive right of privacy in the place searched that

mandates the grant of that motion.    Id. at 547, citing

McAllister, supra, 184 N.J. at 32-33, 36; Hempele, supra, 120

N.J. at 198-200.    Defendant’s standing to seek suppression of

evidence in the trial of a possessory offense, and the existence

of a reasonable expectation of privacy –- relevant not to

standing but to the merits of the suppression motion –- are




                                 32
separate issues.8   Here, we recognize defendant’s automatic

standing under Alston to seek suppression of the heroin and

currency seized by police officers.   We determine, however, that

he lacked “a substantive right of privacy in [the] place

searched” within the meaning of Johnson, supra, 193 N.J. at 547.

This is not a typical case in which a defendant seeks

suppression of items found in his or her home.   Instead, this

novel case arises in unusual circumstances, in which we consider

the reasonable expectation of privacy in the setting of an

eviction that has proceeded to an advanced stage.   Our holding

thus comports with the jurisprudence cited by the dissent, which

overstates the reach of our prior case law.

     Unlike the federal test, the New Jersey constitutional

standard does not require the defendant to prove a subjective

expectation of privacy.   In Hempele, supra, 120 N.J. at 198-99,

this Court rejected the federal two-pronged analysis because it

“entails an arbitrary distinction between facts that manifest a

8
 The distinction between the standing and substantive inquiries
is illustrated by a defendant who claims he did not consent to a
search that resulted in firearms charges, and who files a motion
to suppress on that ground. Under Alston, by virtue of the
possessory offense charged, such a defendant has automatic
standing to proceed and challenge the search. Alston, 88 N.J.
at 228. The defendant’s standing, however, does not resolve the
substantive issue to be decided by the court in the suppression
hearing –- whether the State has demonstrated the defendant’s
consent to the search. To prevail on the merits if the State
has satisfied its burden, a defendant with automatic standing
must still address the substantive inquiry –- whether he
knowingly and voluntarily consented to a search.
                                33
subjective privacy expectation and those that indicate the

reasonableness of the privacy expectation.”     Instead, Article I,

Paragraph 7 of the New Jersey Constitution “requires only that

an expectation of privacy be reasonable.”     Id. at 200.   This

streamlined inquiry governs suppression motions premised upon

Article I, Paragraph 7 of our State Constitution.

    This Court and the Appellate Division have recognized

circumstances in which no reasonable expectation of privacy can

be found, notwithstanding the residential setting of the police

activity.   See, e.g., State v. Johnson, 171 N.J. 192, 209-10

(2002) (finding defendant had no reasonable expectation of

privacy when officers observed contraband on porch of multi-

family home used by other occupants and visitors); N.J. Dep’t of

Envtl. Prot. V. Huber, 213 N.J. 338, 370 (2013) (holding private

land owners cannot claim full expectation of privacy in lands

subject to recorded deed restrictions); State v. Anglada, 144

N.J. Super. 358, 360-61, 363 (App. Div. 1976) (holding defendant

had no reasonable expectation of privacy when investigators were

invited into home and observed evidence of marijuana).

    In other settings, our courts have found that a defendant

does not have a reasonable expectation of privacy in a property

that he or she occupies unlawfully.   In State v. Perry, 124 N.J.

128, 133, 149 (1991), the Court considered the defendant’s

challenge to the admission of drugs and paraphernalia seized in

                                34
an apparently abandoned building that the defendant had entered

to inject himself with drugs.      In addition to citing the

officers’ “unrelated, legitimate purpose” that brought them to

view the contraband, the Court determined that defendant’s

“expectation of privacy was not impinged,” observing:

           [Defendant] was in a house, not his own,
           that appeared vacant and whose front door
           was not only unlocked but open. The open
           door, uncertain ownership, and vacant nature
           of the edifice create a situation far from
           unambiguous and make it difficult to give
           its   transient   user   a    constitutionally-
           reasonable     expectation       of      privacy.
           Moreover,    the     evidence      shows     that
           defendant’s own subjective expectations were
           not thwarted by the officers’ entrance.        He
           “expected” their arrival, wished to continue
           cooperating   with    them    in    the    murder
           investigation, and did not object to them
           ascending the stairs once they entered and
           he saw them.

           [Id. at 149-50 (citing      Katz, supra, 389
           U.S. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d
           at 588 (Harlan, J., concurring)).]

    The Appellate Division reached the same conclusion in State

v. Linton, 356 N.J. Super. 255, 258-59 (App. Div. 2002).        There,

the defendant concealed drugs on the first and second floors of

an “abandoned building in which [he] had no legal interest,” and

police entered the property without a warrant and seized them.

Id. at 256.      The Appellate Division reversed the trial court’s

grant of a motion to suppress the evidence found on the first

floor.   Ibid.     The panel relied on Perry.   Id. at 258.    It


                                   35
explained that “the building was abandoned and defendant, at

best a transient squatter, had no constitutionally-reasonable

expectation of privacy.”   Id. at 256.

    The setting of this case is distinguishable from that of

Perry and Linton.   Here, defendant did not occupy a stranger’s

abandoned premises but lived in his mother’s apartment while an

eviction proceeding was pending.      The courts deciding Perry and

Linton, however, articulated a principle that is relevant to

this case: that the objective reasonableness of the defendant’s

expectation of privacy in that property, for purposes of Article

I, Paragraph 7, turns in large part on his or her legal right to

occupy the property at issue.

    The significance of the defendant’s legal status with

respect to a residence was underscored in State v. Mark, 46 N.J.

262, 264-65 (1966), in which this Court addressed a search by

police officers in a room subject to a week-to-week tenancy that

the defendant had not renewed.   On the day that the defendant

was moving out, while his belongings remained in the room but

his key had been turned in, police searched his room to

investigate the murder of another tenant and, after obtaining a

warrant, seized items belonging to the defendant.      Id. at 265-

66, 268.   The Court did not expressly address the issue of

whether the defendant in Mark had a reasonable expectation of



                                 36
privacy in his former home.9   In determining the propriety of the

police entry into the defendant’s room, however, the Court

considered that “when the search began on January 18, the

tenancy of the defendant had already expired and the landlord

had acquiesced in and approved the conduct of the officers.”

Id. at 274-75.   Given the late stage of eviction process, the

Court in Mark held that the police conduct did not constitute an

unreasonable search.    Id. at 275-76.

     Here, we consider defendant’s legal interest in the

apartment in determining, under State constitutional principles,

whether he had an objectively reasonable expectation of privacy

on the relevant date.   The three-day period between notice of

the warrant of removal and execution of the warrant afforded the

tenant an opportunity to vacate the premises.    That three-day

period expired on April 10, 2009.     Thus, as of April 13, 2009,

defendant had been on notice for a week that an eviction

proceeding was pending and that it had reached a pivotal stage.

Defendant was advised in the warrant of removal that while the

apartment’s “tenant” remained in “legal possession” during the


9
  Mark was decided before Katz and Ciraolo’s adoption of the two-
part test for a reasonable expectation of privacy for Fourth
Amendment purposes and before this Court stated the New Jersey
constitutional standard in Hempele. In Mark, this Court did not
evaluate the facts before it in accordance with the analysis
that we apply to this case but focused instead upon the
reasonableness of the police conduct in light of the “particular
facts presented.” Mark, supra, 46 N.J. at 275.
                                 37
three-day notice period -– preventing the landlord from

conducting a lockout -– this status would change at the end of

the three days.   The remedial action identified in the warrant

of removal -– court intervention -– was neither sought nor

obtained during the critical three-day period.   If defendant

somehow expected that his privacy in the apartment would be

preserved at this late stage of the eviction, that expectation

was unreasonable.10   Moreover, the potential for defendant to

obtain a court remedy during the ten-day period following the

execution of the warrant of removal and to seek appellate review

does not give rise to a reasonable expectation of privacy

considering the landlord’s ability to enter and remove

defendant’s possessions during that time.   See N.J.S.A. 2A:18-72

to -84.

     We hold, based upon the evidence adduced in the suppression

hearing, that on the afternoon of April 13, 2009, defendant

lacked an objectively reasonable expectation of privacy in the

apartment where he had been living.   Accordingly, the April 13,

2009 police action in his apartment was not a “search” for

purposes of either the Fourth Amendment of the United States

10
  In Maglies v. Estate of Guy, 193 N.J. 108, 126 (2007), this
Court articulated a standard for determining whether an
individual who was not the documented tenant could qualify as a
functional co-tenant for purposes of search and seizure
analysis. We need not apply that standard to defendant here.
Even if defendant was a functional co-tenant under Maglies, any
such status terminated at the end of the three-day period.
                                 38
Constitution or Article I, Paragraph 7 of the New Jersey

Constitution.   We reverse the Appellate Division’s determination

with respect to this issue.

                               VII.

    Our holding that the police action did not constitute a

search does not entirely resolve the question of whether the

trial court properly denied defendant’s motion to suppress.    In

addition to contending that the police officers conducted an

unlawful search of his apartment, defendant challenged the

officers’ seizure of the disputed evidence in his motion before

the trial court.   On appeal, the constitutionality of the

seizure was not addressed in detail by the parties or amicus.

The Appellate Division did not separately address that issue.

Neither this Court nor the Appellate Division has squarely

addressed the standard by which a trial court should determine

the constitutionality of a seizure of property that is

discovered in a residence when no Fourth Amendment or Article I,

Paragraph 7 search occurs.

    We therefore remand this matter to the Appellate Division

for a determination, after supplemental briefing by the parties

and amicus, of the constitutionality of the police officers’

seizure of the evidence that was the subject of defendant’s

motion to suppress.   On remand, the Appellate Division should

also consider the issues that it did not reach because of its

                                39
reversal of the trial court’s denial of defendant’s motion to

suppress.

                              VIII.

    The judgment of the Appellate Division is reversed and the

matter is remanded in accordance with this opinion.

     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join
in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a separate,
dissenting opinion, in which JUDGE RODRÍGUEZ (temporarily
assigned) joins. JUDGE CUFF (temporarily assigned) did not
participate.




                               40
                                        SUPREME COURT OF NEW JERSEY
                                         A-3/4 September Term 2012
                                                   070386

STATE OF NEW JERSEY,

    Plaintiff-Appellant
    and Cross-Respondent,

         v.

GENE HINTON,

    Defendant-Respondent
    and Cross-Appellant.

    JUSTICE ALBIN, dissenting.

    Today’s decision weakens more than three decades of this

Court’s standing jurisprudence under Article 1, Paragraph 7 of

the New Jersey Constitution.   Before today, if a person had a

possessory, proprietary, or participatory interest in a place

called home, that person had standing to object to an unlawful

search of the premises and that person’s reasonable expectation

of privacy would not be an issue.    Now, in disregard of the

precise dictates of this Court’s decisions in State v. Alston,

88 N.J. 211, 227 (1981) and State v. Johnson, 193 N.J. 528, 546

(2008), and our general standing jurisprudence, the majority

insists that even when a defendant has standing to object to a

search of his home, the court must determine whether he had a

reasonable expectation of privacy in the premises.    See slip op.

at 30.


                                 1
    In Alston, supra, and Johnson, supra, we rejected the

notion that a defendant with standing to object to a search

under state law must clear “another layer of standing” based in

federal jurisprudence -- that is, have a court find that he had

a reasonable expectation of privacy.    Johnson, supra, 193 N.J.

at 546.   The majority does here exactly what we said we would

not do in Alston and Johnson.    For the first time, this Court

finds that a defendant has standing -- a possessory or

proprietary interest in the place searched -- only to declare

that the defendant has no reasonable expectation of privacy in

the place searched.   Not only does this formulation contravene

our case law, but it could confound practitioners and judges if

expanded beyond the novel scenario in this case.    Because this

departure from our law is unwarranted, I respectfully dissent.


                                 I.

    Defendant Gene Hinton lived at 130 Dayton Street, Apartment

8K, in Newark for six years before the police searched his

apartment on April 13, 2009.    Hinton’s mother, Essie, who died

on March 14, 2009, was the leaseholder of the apartment.

Although Essie’s name was the only one on the lease, it seems

that both the building superintendent and the building manager

knew that Hinton resided with his mother.    Arguably, the New

Jersey Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12,


                                  2
provided Hinton with a basis to remain on the premises, even

after his mother’s death.    See Maglies v. Estate of Guy, 193

N.J. 108, 112 (2007) (prohibiting “the causeless eviction of a

daughter, after the death of her mother, where the landlord

consented to the daughter’s residence and where the daughter’s

income factored into the family contribution and federal voucher

subsidy paid to the landlord”).

    Apparently unaware of Essie’s death, the landlord, the

Newark Housing Authority, initiated an eviction action for

nonpayment of rent.   On March 31, 2009, a Superior Court judge

issued a warrant directing a Special Civil Part Officer to

remove the tenant -- Essie -- and her property from the

premises.    On April 6, the Special Civil Part Officer placed the

warrant of removal under the door of the apartment.    The warrant

gave “Ms. Hinton” 72 hours to vacate the apartment or seek

judicial relief.

    Under the New Jersey Anti-Eviction Act, the “Special Civil

Part shall retain jurisdiction for a period of 10 days

subsequent to the actual execution of the warrant for possession

for the purpose of hearing applications by the tenant for lawful

relief.”    N.J.S.A. 2A:42-10.16(e).   Here, the Special Civil Part

Officer executed the removal on April 13 when he took account of

the property in the apartment and changed the lock on the door.



                                  3
Hinton had ten days from that point to seek judicial relief from

the lockout.

    As he was conducting the lockout, the Special Civil Part

Officer observed what he believed to be illegal drugs in a

bedroom.   He properly reported his observations to the Newark

Police Department.   No one disputes that those observations

provided probable cause to conduct a search.   The only question

is whether Hinton has the right to challenge the warrantless

entry of the apartment by Newark police officers.

    The majority concedes that Hinton has standing to challenge

the search -- that is, he has a possessory, proprietary, or

participatory interest in the apartment.   Nevertheless, the

majority contends that Hinton did not have a reasonable

expectation of privacy in the premises.    The majority imposes an

extra layer of standing -– a reasonable expectation of privacy

analysis -- when we have instructed courts not to do so.   That

is clear from the seminal case guiding our standing

jurisprudence, State v. Alston, supra, to which I now turn.



                                II.

                                A.

    In State v. Alston, the Court articulated the governing

principles for standing in cases in which a defendant claims a

search or seizure violates Article 1, paragraph 7 of the New

                                 4
Jersey State Constitution.      In doing so, this Court parted with

the United States Supreme Court’s newly minted standing

jurisprudence in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421,

58 L. Ed. 2d 387 (1978), and United States v. Salvucci, 448 U.S.

83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), jurisprudence

which requires a person to have a reasonable expectation of

privacy in the place searched or the thing seized to make a

challenge under the Fourth Amendment.      See Alston, supra, 88

N.J. at 226.   In Alston, we specifically rejected “the amorphous

‘legitimate expectations of privacy in the area searched’

standard as applied in Rakas, Salvucci and Rawlings,”1 and

“retain[ed] the rule of standing traditionally applied in New

Jersey, namely, that 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.”

Id. at 228.    The Court came to this conclusion because this rule

of standing is “more consonant with our own interpretation of

the plain meaning of Article 1, paragraph 7 of our State

Constitution.”    Id. at 227.

     “Following Alston, our courts have consistently applied the

automatic standing rule to defendants charged with possessory

1
  Alston, supra, uses the terms “reasonable” and “legitimate”
expectation of privacy interchangeably. See, e.g., 88 N.J. at
218.
                                    5
offenses, regardless of whether they had an expectation of

privacy in the area searched.”     Johnson, supra, 193 N.J. at 545

(emphasis added).   In Johnson, we gave examples, such as State

v. Miller, 342 N.J. Super. 474, 478 (App. Div. 2001), in which

the defendant had standing to challenge the search of a home

where he was visiting but where he did not reside, and State v.

De La Paz, 337 N.J. Super. 181, 193-95 (App. Div.), certif.

denied, 168 N.J. 295 (2001), in which the defendant had standing

to challenge the warrantless entry of a home where he was a

guest.    Johnson, supra, 193 N.J. at 545.

    In Johnson, the State argued, as it does here, that

“without having a reasonable expectation of privacy in the thing

searched or item seized, defendant cannot make out a[n] . . .

Article I, Paragraph 7 violation.”     Id. at 546.     We rejected

that argument.   Ibid.    We refused to “place[] another layer of

standing -- [‘a reasonable expectation of privacy’ analysis] --

on top of our automatic standing rule.”      Ibid.    We made crystal

clear that “we do not use a reasonable expectation of privacy

analysis for standing purposes in criminal cases” -- with one

caveat.   Id. at 547.    We recognized in Johnson that in novel

cases we would have to “determine whether an individual

possesses a substantive right of privacy in a class of objects

or a general place.”     Ibid. (emphasis added).     For example, by

determining that people have a reasonable expectation of privacy

                                   6
in their bank records, see State v. McAllister, 184 N.J. 17, 32-

33 (2005), we signaled that our standing jurisprudence will

apply to those records.   However, there is nothing novel about

the constitutional protections afforded to the home.

“[T]raditional notions of standing” apply to the home, and

therefore the question here is whether Hinton had a possessory,

proprietary, or participatory interest in the apartment

searched.   See Johnson, supra, 193 N.J. at 547.

                                B.

    The majority is mistaken in suggesting that, because Hinton

is charged with a possessory offense, only principles of

automatic standing apply in this case.   Hinton had the right to

assert that he had general standing to object to the search of

his apartment.   See generally 32 New Jersey Practice, Criminal

Practrice and Procedure § 16:33 (Leonard N. Arnold) (2011).       At

the motion to suppress hearing, no one questioned whether Hinton

had standing to challenge the search.    No one questioned whether

he had a reasonable expectation of privacy in the premises.    The

trial court apparently accepted that Hinton had standing and

determined that the Newark police officers had a constitutional

basis to conduct a warrantless search of the apartment.    This

Court has never before found that a defendant had standing to

object to the search of a place and then turned to whether that



                                 7
defendant had a reasonable expectation of privacy in the place

searched.

    The majority refers to cases of a “transient user” and a

“transient squatter” in abandoned buildings, slip op. at 35–36,-

- cases in no way comparable to the present one in which a son

lived with his mother in an apartment for six years with the

almost certain knowledge of the building superintendent.

Perhaps more significantly, the majority ignores that this Court

recently said that “in a challenge to a search or seizure,” the

“‘reasonable expectation of privacy’ standard” is not the

standard when determining “whether property is abandoned.”

Johnson, supra, 193 N.J. at 549 n.5.

    In overruling the Appellate Division and denying Hinton’s

motion to suppress, the majority discards core principles that

guide our automatic standing jurisprudence.    The majority has

forgotten that “[o]ur possessory, proprietary and participatory

standing analysis not only incorporates the notion of a

reasonable expectation of privacy, but also advances other

important state interests.”   Ibid.    One of those interests 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



                                 8
honor fundamental constitutional principles.”       Ibid. (citing

Alston, supra, 88 N.J. at 226 n.8).

    These juridical principles are overlooked in the majority

opinion.



                                III.

    The police officers in this case searched an apartment

without a warrant and without ever seeking the consent of the

owner or leaseholder of that dwelling.       They did not even seek

out an agent of the Newark Housing Authority for authorization

to breach the threshold of Hinton’s home.       No one suggests that

the officers had exigent circumstances to justify the

warrantless search in this case.       The real question is whether

Hinton had a possessory, proprietary, or participatory interest

in the apartment -- and in the property of that apartment --

that allows him to challenge the search.       He was not a transient

guest or visitor but a resident of the apartment for six years,

and he was charged with a possessory offense, which ordinarily

triggers automatic standing.    See Alston, supra, 88 N.J. at 228.

Even after the Special Civil Part Officer executed the warrant

of removal and changed the locks on the apartment, for a period

of ten days, Hinton had a statutory right to seek judicial

relief.    N.J.S.A. 2A:42-10.16(e).     Hinton therefore retained a

possessory or proprietary interest, and even a reasonable

                                   9
expectation of privacy, in his home.    Whether under our

traditional standing principles or under the ones now created by

the majority, Hinton had a right to challenge the search in this

case.



                                IV.

    In weakening the standing jurisprudence for searches and

seizures under Article 1, Paragraph 7 of our State Constitution

in the case of Gene Hinton, the majority takes a step toward

eroding “the privacy rights of all New Jersey’s citizens” and

forgoes sending a signal to “encourage law enforcement officials

to honor fundamental constitutional principles.”    Johnson,

supra, 193 N.J. at 543.   Although the majority’s misreading of

our standing jurisprudence could sow confusion in the ranks of

our trial courts, there is hope that the damage done here will

be limited to the “unusual” facts of this case, which the

majority characterizes as “novel.”    Slip op. at 33.

    For the reasons expressed, I respectfully dissent.

    JUDGE RODRÍGUEZ (temporarily assigned) joins in this

opinion.




                                10
             SUPREME COURT OF NEW JERSEY

NO.   A-3/4                                     SEPTEMBER TERM 2012

ON CERTIFICATION TO           Appellate Division, Superior Court


STATE OF NEW JERSEY,

      Plaintiff-Appellant
      and Cross-Respondent,

              v.

GENE HINTON,

      Defendant-Respondent
      and Cross-Appellant.




DECIDED            October 24, 2013
               Chief Justice Rabner                               PRESIDING
OPINION BY           Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY                         Justice Albin


                                REVERSE AND
CHECKLIST                                                        AFFIRM
                                  REMAND
CHIEF JUSTICE RABNER                 X
JUSTICE LaVECCHIA                    X
JUSTICE ALBIN                                                         X
JUSTICE HOENS                             X
JUSTICE PATTERSON                         X
JUDGE RODRÍGUEZ (t/a)                                                  X
JUDGE CUFF (t/a)               ------------------------       -------------------
TOTALS                                    4                            2




                                                      1
