                      NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-1883-13T4


STATE OF NEW JERSEY,
                                                  APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                         May 12, 2015
v.
                                                    APPELLATE DIVISION
DQWAN A. TAYLOR,

     Defendant-Appellant.
__________________________________________

              Argued January 6, 2015 – Decided May 12, 2015

              Before Judges Fisher, Accurso and Manahan.

              On appeal from the Superior Court of New
              Jersey, Law Division, Middlesex County,
              Indictment No. 12-09-1420.

              Alyssa   Aiello,   Assistant   Deputy   Public
              Defender, argued the cause for appellant
              (Joseph   E.    Krakora,   Public    Defender,
              attorney; Ms. Aiello, of counsel and on the
              brief).

              Steven A. Yomtov, Deputy Attorney General,
              argued the cause for respondent (John J.
              Hoffman, Acting Attorney General, attorney;
              Mr. Yomtov, of counsel and on the brief).

     The opinion of the court was delivered by

MANAHAN, J.S.C. (temporarily assigned)

     Defendant,       Dqwan   A.   Taylor,    appeals    the   trial    court's

denial   of    his   motion   to   suppress   evidence    seized   by   police
officers after a warrantless search of a stolen motor vehicle in

which he was a passenger.              Because the issue presented relative

to    defendant's      knowledge       of    the    motor    vehicle's     status     was

unanswered   by     the    record,      we    are    constrained      to   remand    for

further proceedings.

       On April 18, 2012, at approximately 1:28 a.m., New Jersey

State Troopers Goncalves and Brown were on routine patrol on the

New Jersey Turnpike when they observed a white Lexus ES 350

bearing New York license plates weaving in the left lane and

traveling at a high rate of speed.

       The troopers activated the overhead lights of the patrol

vehicle to initiate a motor vehicle stop.                         The motor vehicle

pulled   over     to    the     shoulder     of     the   highway    and   came     to   a

complete stop.         Three individuals were inside the motor vehicle;

Lastacia    Harmon,       the    driver,      Louis       Bailey,    the   front     seat

passenger, and defendant, the rear seat passenger.

       Trooper    Goncalves       approached        the   motor     vehicle   from    the

passenger side, identified himself, and requested from Harmon

her    driver's     license      and    registration.             Harmon   provided      a

driver's license but was unable to produce the registration.

Harmon informed the trooper that the car did not belong to her

and that she did not know the whereabouts of the paperwork for

the motor vehicle.




                                             2                                 A-1883-13T4
    The trooper inquired about the motor vehicle's ownership

and the whereabouts of the occupants.               Bailey responded the car

belonged to "a friend" and was borrowed for the day.                        No other

details were provided regarding the "friend."                     Harmon informed

the trooper they had been in New York visiting friends and were

on their way back to Atlantic City.                    While Trooper Goncalves

spoke with Harmon and Bailey, defendant appeared to be asleep in

the rear seat.

    Trooper        Goncalves    returned    to      his    patrol     vehicle     and

contacted dispatch.          The troopers were informed that the license

plate on the Lexus was registered to a black 2011 Kia Optima.

While Goncalves returned to the motor vehicle to speak with the

occupants,         Trooper     Brown      checked         the     motor      vehicle

identification number (VIN) on the Lexus and contacted dispatch

for verification.         The VIN number came back to a Lexus reported

stolen five months earlier in Atlantic City.

    After      additional      troopers     arrived,       Harmon,     Bailey     and

defendant were ordered out of the car, placed under arrest,

searched     and    given     Miranda   warnings.           The     troopers    then

conducted a search of the motor vehicle's trunk and passenger

compartment.        The   search   revealed      two    handguns,     one    located

under the driver's seat and one located in the trunk.




                                        3                                   A-1883-13T4
       All three occupants were transported to the barracks.                       At

the barracks, the suspects were searched again.                         The second

search produced two white, rock-like substances in the small

pocket above the right front pocket of Bailey's jeans that was

suspected to be crack cocaine.

       After    again   being      advised   of   their    Miranda   rights,      an

interview      was    conducted     of   each     occupant.       None    of    them

acknowledged ownership of the weapons.

       The motor vehicle was impounded and towed to a private

yard.    Several days thereafter at the impound lot, an attendant

entered the motor vehicle to search for the keys so he could

move    the    car.     In   the   course    of   the   search,   the    attendant

discovered a gun magazine.

       Defendant filed a motion to suppress which was joined by

Harmon and Bailey.           The motion was opposed by the State.              After

oral argument, the court denied the motion.                The court found the

defendants did not have a reasonable expectation of privacy as

they were occupants of a stolen vehicle.                  The court cited this

court's decision in State v. Lugo, 249 N.J. Super. 565 (App.

Div. 1991) and employed the analysis set forth by the Supreme

Court in State v. Hempele, 120 N.J. 182 (1990).

       The court held:

                   Now, I'd like to note initially that
              the defendant operating an automobile known



                                         4                                 A-1883-13T4
    by him to have been stolen has no reasonable
    expectation of privacy in its contents.
    State v. Bohuk, 269 N.J. Super. 581, [(App.
    Div. 1994)].

    But in State v. Lugo . . ., the Appellate
    Division admitted evidence found in a stolen
    vehicle after relying on cases in which - -
    a case it cited in which the defendant had
    knowledge that the car was stolen.

    However, in the court's opinion, the facts
    relied on by the court did not note whether
    the defendant in that case was aware that
    the car was stolen or not stolen.    So, it
    was not relevant to the analysis in Lugo
    whether a defendant had knowledge that the
    car had been stolen or not.

    Here, assuming these defendants had an
    expectation of privacy, [that they were]
    unaware . . . that the vehicle had been
    stolen, even though Harmon . . . was unable
    to turn over the vehicle registration and
    ownership documents, and the defendants were
    unable to articulate from whom they obtained
    the Lexus, the Lexus that they were in at
    the time, I conclude that there is no
    reasonable expectation of privacy.

    And   I  emphasize   the   word  "reasonable"
    expectation of privacy in a stolen car as a
    matter of law.        Therefore, this court
    concludes that since there is no reasonable
    expectation . . . in a stolen motor vehicle,
    the search . . . conducted by the State
    Troopers without a warrant was lawful, and
    therefore, defendants' motion to suppress
    the evidence must be denied.

The court then added:

         And the reason . . . I'm making this
    decision . . . and not conducting an
    evidentiary hearing is because there are a
    certain set of limited facts that are not in



                          5                         A-1883-13T4
             dispute,   and    because   I'm   making   a
             determination that as a matter of law, it is
             unreasonable   for    there   to   exist  an
             expectation of privacy, that it is - - it is
             an expectation that I conclude that society
             will never recognize as legitimate.

     On appeal, the defendant raises the following argument:

                                    POINT I

             BASED ON A FLAWED INTERPRETATION OF STATE v.
             LUGO . . ., THE TRIAL COURT ERRONEOUSLY
             REACHED  THE   UNSOUND  CONCLUSION   THAT  A
             PASSENGER HAS NO EXPECTATION OF PRIVACY IN A
             STOLEN CAR, EVEN IF HE HAD NO KNOWLEDGE THAT
             THE CAR WAS STOLEN AND REASONABLY BELIEVED
             THAT THE DRIVER WAS IN LAWFUL POSSESSION OF
             IT.

     The     State     argues   that       defendant    had     no      reasonable

expectation of privacy in the motor vehicle, and therefore, the

police did not need a warrant to search.1

     Although we accept the trial court's findings of fact that

are "supported by sufficient credible evidence in the record,"

State   v.   Gamble,   218   N.J.   412,    424   (2014)      (citing    State   v.

Elders, 192 N.J. 224, 243 (2007)), we need not defer to the

trial   court's   legal   conclusions       reached    from    the   established

1
   The State raised an alternative argument of inevitable-
discovery during oral argument on the motion which the court
rejected. No evidence of a police inventory policy was adduced
at the hearing.     The exception's applicability requires the
finding that, notwithstanding that the police violated the law,
the   State  "would   have  pursued  established  investigatory
procedures that would have inevitably resulted in the discovery
of the controverted evidence . . . ." State v. Sugar, 100 N.J.
214, 240 (1985).



                                       6                                  A-1883-13T4
facts.    State v. Jefferson, 413 N.J. Super. 344, 352 (App. Div.

2010).    "'If the trial court acts under a misconception of the

applicable    law,'     we       need   not    defer        to    its   ruling."      Ibid.

(quoting State v. Brown, 118 N.J. 595, 604 (1990)).

    We first address defendant's argument he had a reasonable

expectation of privacy.                 The Fourth Amendment of the United

States Constitution and Article I, Paragraph 7 of the New Jersey

Constitution     protect           against          "unreasonable         searches       and

seizures."     U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.                              A

search triggering constitutional scrutiny occurs when government

agents    intrude      into       an    area       where     an     individual     has     "a

reasonable 'expectation of privacy[.]'"                          See Terry v. Ohio, 392

U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 899 (1968)

(citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507,

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

see also State v. Hinton, 216 N.J. 211, 229 (2013).

    Absent a reasonable expectation of privacy in the place or

thing    searched,     an    individual        is     not    entitled     to   protection

under either the Fourth Amendment or Article I, Paragraph 7 of

the New Jersey Constitution.                  Rakas v. Illinois, 439 U.S. 128,

148-49, 99 S. Ct. 421, 433, 58 L. Ed. 2d 387, 404-05 (1978);

Hinton,     supra,     216       N.J.    at        239-40    (holding      that    because

defendant     lacked        an    objectively          reasonable        expectation      of




                                               7                                   A-1883-13T4
privacy in the apartment police searched, the "police action in

his apartment was not a 'search' for purposes of either the

Fourth Amendment of the United States Constitution or Article I,

Paragraph 7 of the New Jersey Constitution").

    Our      Supreme      Court     has     held        that      individuals            have     a

reasonable expectation of privacy in garbage placed in opaque

bags,   Hempele,        supra,     120    N.J.        at     255,     and     bank       records

maintained by third parties.               State v. McAllister, 184 N.J. 17,

30-33 (2005).       On the other hand, a defendant has no reasonable

expectation of privacy in a vacant building with an opened and

unlocked    front       door,    State    v.     Perry,         124    N.J.       128,    149-50

(1991), or in a known stolen vehicle, Lugo, supra, 249 N.J.

Super. at 568.

    Whether        an    individual        has     an       expectation           of     privacy

requires     a    fact-sensitive         analysis.              For    Fourth          Amendment

purposes,    to     determine       whether       a        person     has     a    reasonable

expectation of privacy in a place or object, courts must make "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?"               Cal. v. Ciraolo, 476 U.S. 207, 211

106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210, 215 (1986).                               Unlike the

federal two-part inquiry, the New Jersey constitutional standard




                                            8                                            A-1883-13T4
does not require the defendant to prove a subjective expectation

of privacy.      Hinton, supra, 216 N.J. at 236.                  Rather, "Article

I, Paragraph 7 of the New Jersey Constitution 'requires only

that an expectation of privacy be reasonable.'"                      Ibid.        (citing

Hempele, supra, 120 N.J. at 200).

      "[E]xpectations         of   privacy      are    established         by    general

social norms," and must align with the "aims of a free and open

society."     Hempele, supra, 120 N.J. at 200-01 (citations and

internal    quotation         marks     omitted).            Under   federal         law,

defendants have the burden of proving they had a legitimate

expectation      of   privacy      in    the     place       or   object        searched.

Rawlings v. Ky., 448 U.S. 98, 104-05, 100 S. Ct. 2556, 2561, 65

L. Ed. 2d 633, 641 (1980).              "Under state law, a 'defendant must

show that a reasonable or legitimate expectation of privacy was

trammeled by government authorities.'"                   Hinton, supra, 216 N.J.

at 233 (quoting State v. Evers, 175 N.J. 355, 368-69 (2003)).

      In the case before us, we conclude that the question of

whether defendant had a reasonable expectation of privacy in the

motor vehicle cannot be solely determined as a matter of law,

but   requires    a   fact-sensitive          inquiry.        Such   an    inquiry      is

required since we decline the State's invitation to formulate a

bright—line      rule,   as    a   matter      of     law,    that   an     individual

operating or occupying a stolen motor vehicle, regardless of




                                          9                                      A-1883-13T4
their    knowledge       of    its    status,     does     not    have        a    reasonable

expectation of privacy.

      In State v. Pace, 171 N.J. Super. 240, 244-45 (App. Div.

1979), certif. denied, 84 N.J. 384 (1980), the defendant was

operating a motor vehicle later determined through a records

check    to    be   stolen.       After    the    defendant           was    arrested,     the

police conducted an inventory search of the motor vehicle for

evidence of ownership.               Id. at 245.       The police located, forced

open, and searched a locked attaché case found in the trunk.

Ibid.       The     defendant     later   pled      guilty       to    receiving         stolen

property, i.e., the motor vehicle.                 Id. at 250.

      On      appeal,    the    court     noted     the    State's           argument     that

defendant had no reasonable expectation of a right to privacy in

any article placed in the stolen motor vehicle.                             Id. at 247.      We

noted,     "[W]ere       we    approaching      this      issue       as     one    of   first

impression, we might be persuaded that this position has merit."

Ibid.      However, citing United States v. Chadwick, 433 U.S. 1, 97

S. Ct. 2476, 53 L. Ed. 2d 538 (1977) and Arkansas v. Sanders,

442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), we found

the     search      of   the    attaché      case      violated         the       defendant's

reasonable expectation of privacy.                  Pace, supra, 171 N.J. Super.

at 247-50.




                                           10                                        A-1883-13T4
       In Lugo, the defendant was stopped by police and arrested

after they learned he was operating a stolen                       motor vehicle.

Lugo, supra, 249 N.J. Super. at 567.                 The police impounded the

motor vehicle.        Ibid.     Two days later, while the motor vehicle

remained     impounded,       police   received      an    anonymous         tip     that

contraband would be found in the motor vehicle.                      Ibid.         Acting

thereupon,     the    police    located      a   brown    paper   bag        under   the

passenger seat containing heroin.                Ibid.     We determined, based

upon   the    United    States    Supreme        Court    decision      in    Cal.     v.

Acededo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991)

which overruled Chadwick and Sanders, we "need not reach the

result we were required to reach in Pace."                       Lugo, supra, 249

N.J. Super. at 568.            We added that "a defendant operating an

automobile known by him to have been stolen has no reasonable

expectation of privacy respecting contraband he had hidden in it

. . . ."     Ibid.2

    In   State   v.    Bohuk,    269   N.J.      Super.   581,    595    (App.       Div.

1994), a case cited by the motion judge, we cited Lugo and noted

that "a defendant operating an automobile known by him to have




2
  Defendant was not charged with "Receiving Stolen Property"
which requires proof of knowledge or belief the property has
been stolen.    N.J.S.A. 2C:20-7(a).  None of the statutory
requisites supporting presumption of knowledge would apply
herein. N.J.S.A. 2C:20-7(b).



                                        11                                     A-1883-13T4
been stolen has no reasonable expectation of privacy in its

contents."

       In    view    of   our       reading   of   Pace,        Lugo   and     Bohuk,   which

specifically         address        the   issue    of    knowledge,       we    reject       the

State's "strict liability" argument that knowledge of the motor

vehicle's      status        is      irrelevant     to      a     determination         of    a

reasonable expectation of privacy.                      To be sure, one can envision

other settings where an "unknowing occupier" of a stolen motor

vehicle      would    have      a    reasonable     expectation          of   privacy     that

would not offend societal norms.

       The    State       also      argues    it    was     defendant's          burden      to

demonstrate, at the time of the motion, that he had a reasonable

or legitimate expectation of privacy.                      Evers, supra, 175 N.J. at

369.    Without further consideration of that issue, we reject the

State's      argument      that      defendant     "waived"        his    opportunity        to

present evidence to meet his burden as the motion was determined

after oral argument based upon the agreement of the parties and

the court.          Therefore, no facts were developed on the issue of

defendant's knowledge.3               In light of the agreed upon procedure,




3
  We are mindful           that, after the motion was denied, defendant
entered a guilty          plea to second-degree unlawful possession of a
firearm.  During          the plea colloquy, defendant admitted he knew
the vehicle was            stolen.   Whether, or to what extent, that
admission may be           used at the hearing now required by today's
                                                             (continued)


                                              12                                    A-1883-13T4
it would be fundamentally unfair to conclude defendant waived

the opportunity to present such evidence.

    Remanded   in   conformity   with   this   decision.   We   do    not

retain jurisdiction.




(continued)
decision should be considered in the first instance by the trial
judge.



                                  13                            A-1883-13T4
