               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2490-17T4

STATE OF NEW JERSEY,
                                         APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                 August 19, 2019
v.                                          APPELLATE DIVISION

LOUIS V. WILLIAMS,

     Defendant-Appellant.
____________________________

           Submitted January 15, 2019 – Decided August 19, 2019

           Before Judges Rothstadt, Gilson and Natali.

           On appeal from the Superior Court of New Jersey,
           Law Division, Mercer County, Indictment No.
           16-11-0834.

           Joseph E. Krakora, Public Defender, attorney for
           appellant (Michele Erica Friedman, Assistant Deputy
           Public Defender, of counsel and on the brief).

           Gurbir S. Grewal, Attorney General, attorney for
           respondent (Valeria Dominguez, Deputy Attorney
           General, of counsel and on the brief).

     The opinion of the court was delivered by

NATALI, J.S.C. (temporarily assigned).
      The central issue in this appeal is whether a resident of a boarding or

rooming house has a reasonable expectation of privacy in areas beyond his or

her bedroom door. Following an unsuccessful motion to suppress marijuana

and a firearm seized from his room, defendant Louis V. Williams pled guilty to

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1).

Related possessory weapons charges and a disorderly-persons charge of

possessing less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4), were

dismissed.1   Defendant was sentenced to five years of imprisonment with

forty-two months of parole ineligibility, and now appeals from the order

denying his motion to suppress.        Based on the proofs elicited at the

suppression hearing, we conclude defendant had a reasonable expectation of

privacy in the common areas of his residence, and it was unreasonable for the

police to enter the premises repeatedly without a warrant, exigent

circumstances, or a lawful right of entry. Accordingly, we reverse.

                                      I.

      The following facts are gleaned from the suppression hearing, where a

single witness, Detective Carlos Estevez of the New Jersey State Police,



1
  A second-degree charge of certain persons not to have weapons, N.J.S.A.
2C:39-7(b)(1), was amended to the possessory weapons offense to which
defendant pled guilty.


                                                                      A-2490-17T4
                                       2
testified. The motion judge found that Estevez "portrayed candor," "bore an

honest demeanor," and that his testimony was "credible."

        At around 9:30 a.m. on March 19, 2016, Estevez was in his office in

Trenton when he heard gunshots from a nearby neighborhood. After checking

the immediate vicinity on foot, he entered a police vehicle with his superior,

Sergeant Sansone.2      Dispatch reports from the Trenton Police Department

indicated that the gunshots were fired at a nearby bar, and that the suspected

shooter was an African-American male named "Louis" with an alias of "Big"

who was wearing a grey hooded sweatshirt and who had fled to, and lived at, a

dwelling on Spring Street.

        The officers drove to the Spring Street dwelling, where they met a

Trenton Police Department officer outside. Estevez testified that from the

vantage point of the sidewalk, the structure appeared to be an "attached row

home" that "could be" a "normal single family home" or a "multi" family home

because "[t]here [were] two floors."         Estevez could not "tell [if it was] a

boarding house" from the sidewalk, but testified that "other boarding houses"

he observed in Trenton had similar external appearances.            According to

Estevez, the front door was equipped with a lock, but the door was unlocked at



2
    Sergeant Sansone's first name is not provided in the record.


                                                                          A-2490-17T4
                                         3
that time and "wasn't secured at all, not by [a] latch, not by [a] doorknob, not

by [a] lock," and it simply "swung open" when he knocked on it. 3

      When the door opened, the three officers "converged" into what Estevez

described as a long hallway with a stairway leading to the second floor directly

in front of him. Estevez noticed multiple doors to his left, all of which had

padlocks on them, which led him to believe the building was being used as "a

boarding house because usually boarding houses are multi-apartment

dwellings." The officers then "cleared the common area[s]" for weapons and

to "make sure" that the suspect was not "hiding . . . in that house unlawfully."

The "common areas" the officers searched included the downstairs hallway, "a

common bathroom" upstairs, and "a short hallway" by the bathroom.

      After clearing the common areas, Estevez and Sansone left the building

and returned to their vehicle to search for the suspect in the surrounding area.

During that "loop" around the area, the Trenton Police Department officer left

the building, and Estevez and Sansone received a police dispatch report


3
   At the suppression hearing, Estevez stated that he did not remember whether
there was "a screen door" in front of "the main door." We note, however, that
the record contains an affidavit in support of a search warrant, see infra p. 7,
which was marked for identification but not entered into evidence, in which
Estevez certified that the building had "a white storm dorm with clear glass in
the middle" and a "front door" that was "white with a small half-moon window
on the top of it." The affidavit also states that "[t]o the left of the front door"
is a black mailbox underneath the street number assigned to the house.


                                                                          A-2490-17T4
                                        4
indicating that a crime scene was established at the bar and that "spent shell

cases" were recovered, which Estevez interpreted as confirming his belief that

"a gun was discharged" and "there was an actual shooting."            Estevez also

testified that he believed he was involved in an "active shooting" investigation.

      Estevez and Sansone returned to Spring Street and re-entered the

building. Estevez proceeded to knock on two interior doors, one on the first

floor and one on the second floor, both of which were answered by female

residents who denied having any male roommates. Estevez then went to the

second floor's "middle room door."

      As he approached that room, Estevez heard movement and smelled

marijuana through the door, which he did not notice the first time he entered

the dwelling. Estevez knocked on the door, announced that he was a police

officer, and "told the individual to go ahead and answer the door."

      Defendant, who was unknown to Estevez at the time, opened the door

shirtless but wearing pants.    The door swung inward toward a room that

Estevez stated was approximately eight feet by eight feet.         According to

Estevez, the smell of marijuana "drastically increased" when defendant opened

the door, and defendant was sweating and breathing heavily as if "he just did

some type of exercise." Estevez also stated that, based on his experience in




                                                                          A-2490-17T4
                                        5
shooting investigations, he knew that individuals tend to remove their shirts to

avoid identification, and that his suspicions were heightened because:

            [Defendant was] sweating. It's . . . early in the
            morning in March, still cold out. That didn't make
            sense to me. And then he was . . . breathing heavy.
            So at this point I asked him why and he told me he
            just woke up. So, again, the hairs on the back of my
            neck are standing up, something's not right,
            something's not fitting here. And not to mention, the
            odor of the burnt ember marijuana at this point is
            coming out of the room.

      Estevez stated that while he was standing in "the doorway," which he

clarified to mean "the common hallway area," he looked into defendant's

"single bedroom" and observed "a mattress on the floor," a "window on the

rear wall," a "dresser" by the window, and "objects scattered around." Estevez

informed defendant that he was conducting an investigation and asked

defendant to provide identification. Defendant responded by stating that he

"had to go get his wallet." As Estevez explained:

            [Defendant] then walked towards the dresser on the
            left side of the room, [and] went to grab the wallet.
            And at that point, -- now, again, this is a shooting
            investigation. I'm all over his hands. I'm watching his
            hands closely, you know, for officer safety. It's small
            quarters. He goes to the back of the room. I'm
            watching his hands as he grabs his wallet. I see this
            small bag of marijuana right next to his wallet.




                                                                         A-2490-17T4
                                       6
Estevez testified that from his vantage point the marijuana was "in front of the

wallet" on the dresser, and that once he saw the marijuana, he knew that

defendant was "going to be under arrest."

      As defendant grabbed his wallet and "turn[ed] around to provide . . . the

identification," Estevez simultaneously "stepp[ed] into the apartment . . . to

effectuate the arrest." According to Estevez, he and defendant:

            met right there in the room. [It was] a matter of a
            couple of steps and, again, it's close quarters, close
            proximity. I want to make sure I have control for my
            safety, for his safety, [and] the safety of the other
            officer.

      Defendant handed his wallet and driver's license to Estevez, who noticed

defendant's name was Louis Williams. Estevez testified that at that point,

"everything[] [was] starting to match up." He then placed defendant under

arrest for possession of marijuana, conducted a protective sweep of the

bedroom, and applied for a warrant to search defendant's room for drugs,

weapons, and other items. After obtaining the warrant, other police officers

searched defendant's bedroom and seized a bag of marijuana and a "Lorcin .25

caliber semi-automatic handgun with a defaced serial number."

      The court reserved decision at the conclusion of the suppression hearing.

In its subsequent oral opinion, the court explained that it accepted Estevez's

testimony "as fact." Based on that testimony, the court found that "the exterior



                                                                        A-2490-17T4
                                       7
door" of the Spring Street dwelling "was not secured," that when Estevez

knocked on it, "it swung open," and that the dwelling was being used as a

boarding house. 4   The court determined that the constitutional protections

against unreasonable searches and seizures "only extend to such areas . . . in

which an individual has a reasonable expectation of privacy," and that those

safeguards did not extend to "the building in general" or "the common areas"

because "those areas are accessible and used by other occupants."

      After finding "defendant did not have any privacy right to that common

hallway of the boarding house," the court concluded that the officers' actions

"were objectively reasonable as they had a lawful right to be at that location

where they saw contraband in plain view," and Estevez inadvertently observed

the marijuana. Therefore, the court held that "there was no unlawful search or

seizure prior to the application for a search warrant," and that "all of the

information obtained provided a legitimate basis for Estevez to apply for and

4
   With certain exceptions not relevant here, a boarding house is defined as
"any building . . . which contains two or more units of dwelling space arranged
or intended for single room occupancy . . . wherein personal or financial
services are provided to the residents . . . ."          N.J.S.A. 55:13B-3(a).
Contrariwise, N.J.S.A. 55:13B-3(h) defines "[r]ooming house" as "a boarding
house wherein no personal or financial services are provided to the residents."
Aside from Estevez's testimony that the "attached row home" was a "boarding
house," the record does not contain evidence indicating whether personal or
financial services were provided to the residents of the Spring Street dwelling.
For purposes of our decision, we discern no substantive distinction in
characterizing the Spring Street residence as a rooming or boarding house.


                                                                       A-2490-17T4
                                       8
obtain a search warrant for the premises."      Accordingly, the court denied

defendant's motion to suppress.

      Defendant raises the following issue on appeal:

            POINT I

            THE OFFICERS' WARRANTLESS ENTRY INTO
            THE BUILDING WITH A LOCK ON ITS FRONT
            DOOR WAS OBJECTIVELY UNREASONABLE.

                                     II.

      "An appellate court reviewing a motion to suppress evidence . . . must

uphold the factual findings underlying the trial court's decision, provided that

those findings are 'supported by sufficient credible evidence in the record.'"

State v. Sencion, 454 N.J. Super. 25, 31 (App. Div. 2018) (quoting State v.

Boone, 232 N.J. 417, 425-26 (2017)). We defer to the motion judge's factual

findings when supported by sufficient evidence in the record "because the

motion judge, unlike an appellate court, has the 'opportunity to hear and see

the witnesses and to have the "feel" of the case, which a reviewing court

cannot enjoy.'" State v. Gonzalez, 227 N.J. 77, 101 (2016) (quoting State v.

Johnson, 42 N.J. 146, 161 (1964)). We also defer to the court's credibility

findings. State v. Locurto, 157 N.J. 463, 472 (1999). "We owe no deference,

however, to conclusions of law made by trial courts in suppression decisions,

which we instead review de novo." Sencion, 454 N.J. Super. at 31-32.



                                                                        A-2490-17T4
                                       9
      Defendant maintains that "the officers' warrantless entry [into] the

building was unconstitutional at its inception" and the evidence discovered

"must be suppressed as fruit of the poisonous tree." Citing Sencion and State

v. Jefferson, 413 N.J. Super. 344 (App. Div. 2010), defendant argues that he

"had a reasonable expectation of privacy in [the] common hallways" and the

officers violated his federal and state constitutional rights when they made a

warrantless entry into the building.

      The State, principally relying on State v. Smith, 37 N.J. 481 (1962), and

a series of federal cases, contends that the police action here was constitutional

because the officers "had a lawful right to be in the common areas without a

warrant while conducting their investigation of the shooting" and "defendan t

had no reasonable expectation of privacy in the common hallway of the

unlocked multi-unit building." According to the State, once the police were in

a "lawful vantage point of the common hallway," they observed the marijuana

"in plain view on defendant's dresser," and subsequently obtained a lawful

warrant that led to the discovery and seizure of the gun.

                                       III.

      "The Fourth Amendment to the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution require that police officers obt ain a

warrant before conducting a search, unless that search falls into a recognized



                                                                         A-2490-17T4
                                       10
exception to the warrant requirement." Sencion, 454 N.J. Super. at 32.

Further, "the Fourth Amendment has drawn a firm line at the entrance to the

house. Absent exigent circumstances, that threshold may not reasonably be

crossed without a warrant." State v. Penalber, 386 N.J. Super. 1, 11 (App. Div.

2006) (quoting Payton v. New York, 445 U.S. 573, 590 (1980)).

      "A search without a warrant is presumptively invalid," State v. Mann,

203 N.J. 328, 340 (2010), and "the State bears the burden of proving by a

preponderance of the evidence that a warrantless search or seizure 'falls within

one of the few well-delineated exceptions to the warrant requirement.'" State

v. Elders, 192 N.J. 224, 246 (2007) (quoting State v. Pineiro, 181 N.J. 13, 19-

20 (2004)). One exception is the plain view doctrine. 5 Sencion, 454 N.J.

Super. at 32 (quoting State v. Pena-Flores, 198 N.J. 6, 11 (2009)). Probable

cause is necessary to invoke the plain view doctrine, State v. Johnson, 171 N.J.

192, 208 (2002) (quoting Arizona v. Hicks, 480 U.S. 321, 327 (1987)), which

is "a 'well grounded' suspicion that a crime has been or is being committed."

Id. at 214 (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)).

      In order to satisfy the plain view doctrine when this case was decided,

the State was required to establish: 1) a police officer was "lawfully in the

5
  Other than the plain view doctrine, the State does not allege on appeal that
any other exception to the warrant requirement applied, such as the community
caretaker doctrine or exigent circumstances.


                                                                        A-2490-17T4
                                       11
viewing area"; 2) the officer "discover[ed] the evidence 'inadvertently'"; and 3)

it was "'immediately apparent' to the police that the items in plain view were

evidence of a crime, contraband, or otherwise subject to seizure." Mann, 203

N.J. at 341 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)). 6          "The

question whether property in plain view of the police may be seized . . . must

turn on the legality of the intrusion that enables them to perceive and

physically seize the property in question." Johnson, 171 N.J. at 208 (alteration

in original) (quoting Texas v. Brown, 460 U.S. 730, 737 (1983)).

      The parties do not dispute that Estevez discovered the marijuana

inadvertently once defendant opened his bedroom door, or that it was

immediately apparent to Estevez that the marijuana was contraband subject to

seizure. Accordingly, the issue on appeal is whether Estevez had a lawful

right to be in the second floor hallway where he initially smelled the marijuana

that led to his observations, defendant's arrest, and the issuance of the warrant

prompting the seizure of the defaced gun. In deciding if Estevez was lawfully

in that viewing area, we must determine whether defendant had a reasonable

expectation of privacy in the common hallway, such that he is entitled to the

6
    The New Jersey Supreme Court eliminated the inadvertence prong in
November 2016. Gonzales, 227 N.J. at 82. "That prong is satisfied if the
police did not 'know in advance the location of the evidence and intend to
seize it . . . .'" Johnson, 171 N.J. at 211 (quoting Coolidge v. New Hampshire,
403 U.S. 443, 470 (1971)).


                                                                         A-2490-17T4
                                       12
protections of the Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution.

      "One seeking to invoke the protection of the [F]ourth [A]mendment must

establish that a reasonable expectation of privacy was invaded by government

action." State v. Marshall, 123 N.J. 1, 66 (1991). To determine whether an

expectation of privacy is protectable, federal courts "employ[] a two-prong

test: first, a person must have exhibited an actual expectation of privacy, and

second, the expectation must be one that society is prepared to recognize as

reasonable or legitimate." Sencion, 454 N.J. Super. at 32. "Our Supreme

Court, however, has defined an objective test asking only whether a person has

a reasonable expectation of privacy." Ibid. Such "'[e]xpectations of privacy

are established by general social norms,' and must align with the 'aims of a free

and open society.'" State v. Taylor, 440 N.J. Super. 515, 523 (App. Div. 2015)

(quoting State v. Hempele, 120 N.J. 182, 200-01 (1990)).

      Our courts have not squarely determined whether common areas in a

rooming or boarding house are within the zone of privacy protected by the

Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution.7


7
  The cases that most nearly address this issue are State v. Ball, 219 N.J. Super.
501 (App. Div. 1987), and State v. Berlow, 284 N.J. Super. 356 (Law Div.
1995). But in Ball, the question was whether the defendant had a reasonable
expectation of privacy in the unenclosed area behind a boarding house where
                                                                      (continued)

                                                                         A-2490-17T4
                                       13
Instead, our case law has focused primarily on multi-family apartment

buildings.8

      In discussing a resident's expectation of privacy in an apartment

building, we observed that our "Supreme Court has indicated that generally in

'multi-occupancy premises . . . none of the occupants can have a reasonable

expectation of privacy in areas that are also used by other occupants.'"

Penalber, 386 N.J. Super. at 10 (quoting Johnson, 171 N.J. at 209).          The

Penalber court also noted, as the State does here, that a number of federal

cases permit the police to make warrantless entry into a hallway of an

apartment house "because a tenant can have no reasonable expectation of

privacy in an area frequented by occupants of the other apartment unit, the

(continued)
his pickup truck was parked. See Ball, 219 N.J. Super. at 506-07. In that
context, we stated "[t]he curtilage concept has limited applicability with
respect to such multi-occupancy premises because none of the occupants can
have a reasonable expectation of privacy in the areas that are also used by
other occupants." Ibid. And in Berlow, the trial court determined there was
"insufficient evidence" to find that the defendant, who was the landlord of a
rooming house, "had no right of privacy in the area to which police sough t
access," which was a "common area of a rooming house." Berlow, 284 N.J.
Super. at 360.
8
   For example, in State v. Walker, 213 N.J. 281 (2013), the Court held that
police officers "have a right to be . . . in the hallway of a public housing
building," 213 N.J. at 296, specifically the hallway in front of defendant's
"apartment" in a "public housing project in Newark." Id. at 285. There is no
indication that the residence on Spring Street is a public housing building or in
a public housing area of Trenton.


                                                                        A-2490-17T4
                                       14
landlord, deliverymen and visitors." Ibid. Other courts, however, have held

that "occupants of an apartment house have a reasonable expectation of

privacy in a common hallway, at least where the door leading into the hallway

is kept locked."    Ibid.; see also Sencion, 454 N.J. Super. at 29-30, 32

(suppressing the fruits of a police search effectuated by the use of an "entry

tool" because "people have a reasonable expectation of privacy from a forced

police entry into the locked common area of the apartment building," but

noting that "[e]ven when strangers have access to the location, an expectation

of privacy may well exist under the New Jersey Constitution"); Jefferson, 413

N.J. Super. at 350-52 (holding that "the police entered defendant's home when

[an officer] wedged herself in the doorway" of an apartment that was normally

kept locked, but which the defendant briefly opened, "and that they needed

either a warrant or an exception from the warrant requirement of the federal

and State constitutions to do so"); State v. Nunez, 333 N.J. Super. 42, 51 (App.

Div. 2000) ("[T]he fact of whether a door is locked or unlocked [is] a far more

reliable predictor of a reasonable expectation of privacy than the size of the

building in which one resides.").

      Without distinguishing between apartment buildings and rooming or

boarding houses, the State relies on several cases in asserting that "[a]

policeman is not out-of-bounds when he is in the common passageway of a



                                                                        A-2490-17T4
                                      15
multi-family house in the furtherance of an investigation." See Smith, 37 N.J.

at 496; see also Johnson, 171 N.J. at 209 ("[T]he curtilage concept has limited

applicability with respect to multi-occupancy premises because none of the

occupants can have a reasonable expectation of privacy in areas that are also

used by other occupants" (quoting Ball, 219 N.J. Super. at 506-07)); State v.

Brown, 282 N.J. Super. 538, 547 (App. Div. 1995) ("[A] tenant does not have

a reasonable expectation of privacy in the common areas of a building merely

because doors to the common areas are normally kept locked and require a key

for access"); State v. Craft, 425 N.J. Super. 546, 550-52, 555 (App. Div. 2012).

      In Smith, the defendant was "arrested in a flat occupied by [his] mother

on the third floor of a three-family house" in Newark. Smith, 37 N.J. at 490.

The Court concluded that "the presence of the detectives at the door to th e

apartment itself involved no misconduct or invasion of the rights of anyone"

because "[a]s to the owner, surely a policeman does not trespass when he

enters the common areas in discharge of his duties," and as to the defendant's

mother, who was a tenant, "it cannot be said that she was in possession of the

passageway." Id. at 496. The Court reached a similar conclusion in finding a

"diminished expectation of privacy" in the porch of "an attached row house

with multiple apartments . . . ." See Johnson, 171 N.J. at 200, 209-10.




                                                                          A-2490-17T4
                                       16
      But the motion judge in this case, despite referring to defendant's

bedroom at one point as his "apartment," specifically found that the Spring

Street dwelling was a "boarding house." Based on the facts elicited at the

suppression hearing, we conclude the State failed to establish that Estevez was

in a lawful viewing area when he observed the marijuana because defendant

had a reasonable expectation of privacy in the common hallway of the

boarding or rooming house, as that area was not proven to be clearly open to

the public. We stress that our decision is limited to the specific facts of this

case, and further conclude the cases cited by the State, which primarily address

either curtilage, or common areas of apartment buildings or similar self -

contained multi-unit dwellings, are of limited utility in resolving the issues on

appeal.   Those cases are factually and legally inapposite as the living

arrangements at issue in those cases are dissimilar to defendant's boarding or

rooming house, which Estevez described as resembling a single or multi -

family home. This distinction is significant. Compare, e.g., United States v.

Correa, 653 F.3d 187, 188 (3d Cir. 2011) (finding residents "of a multi-unit

apartment building" had no "reasonable expectation of privacy in the building's

common areas"), with Brown v. United States, 83 F.2d 383, 385-86 (3d Cir.

1936) (concluding that a "private dwelling in which the proprietress" lived

with her family was the "home" of the "roomers" who also lived there, and that



                                                                         A-2490-17T4
                                       17
"so far as the unlawful search" of the house "affected [the roomers], it violated

their constitutional rights")

      Indeed, several state and federal cases have held that hallways or other

common areas in rooming or boarding houses are entitled to constitutional

protections. See e.g., United States v. Booth, 455 A.2d 1351, 1353-54 (D.C.

1983) (rejecting the argument that residents of a rooming house "lack[ed] a

legitimate expectation of privacy in the front hall where [the officer] made his

warrantless entry"); State v. Titus, 707 So.2d 706 (Fla. 1998) (concluding

residents of a rooming house had a reasonable expectation of privacy in the

common areas); Logan v. Commonwealth, 616 S.E.2d 744, on reh'g en banc,

622 S.E.2d 771 (Va. Ct. App. 2005) (government conceded rooming house was

not open to the public). We acknowledge, however, that a number of state and

federal courts have reached a contrary conclusion.       E.g., United States v.

Anderson, 533 F.2d 1210 (D.C. Cir. 1976); State v. Kechrid, 822 S.W.2d 552

(Mo. Ct. App. 1992); State v. Smith, 154 A.3d 660, 666-67 (N.H. 2017)

(finding roomers did not have a reasonable expectation of privacy in common

areas because "the large number of tenants" in the rooming house, "the fact

that each room had an individual number and a private lock, and [the roomers']

custom of leaving the exterior door unsecured" outweighed the fact that the

roomers had a "shared kitchen and bathroom").



                                                                         A-2490-17T4
                                       18
      After reviewing the state and federal authorities, we are persuaded by the

Florida Supreme Court's reasoning in Titus. In that case, a police officer,

without a warrant or consent, entered a side gate, then the back entrance of a

two-story home that the officer knew was "a rooming house" to investigate an

informant's tip that someone was smoking narcotics inside. 707 So.2d at 707.

There was conflicting testimony as to whether the back entrance had a door,

"but the residents kept their individual rooms locked," and "[t]he officer

proceeded through a corridor to the common-area kitchen, where several

people had gathered," some of whom were "neither residents nor guests thereof

but who, according to unelaborated testimony, 'just came in off the street.'"

Ibid. After the officer observed defendant, who was a resident of the rooming

house, place "a pipe into his pocket" and "an invited guest . . . smoking crack

cocaine through a pipe," defendant was arrested and charged with possessory

drug offenses. Ibid.

      In holding that defendant's motion to suppress the evidence obtained

from the rooming house should have been granted, the court explained that the

"mere fact that certain rooms traditionally associated with a home are shared

by rooming house residents does not render the structure any less a home to

those residents."   Id. at 708. The court concluded that the sharing of the

common hallway by the residents did not deprive them of a reasonable



                                                                        A-2490-17T4
                                      19
expectation of privacy in that hallway or in the common areas connected by it.

Id. at 708-11. Instead, in limiting its holding to the "common hallways" in

rooming houses, the court distinguished "common hallways in unlocked

apartment buildings, which generally serve only to connect separate,

self-contained living units typically complete with all of the traditional living

areas (i.e., bathrooms, dining rooms, living rooms, kitchens, etc.)." Id. at 711.

The court explained,

            [i]nterior hallways in rooming houses are protected
            only by virtue of linking such traditional rooms within
            the house—they provide rooming house residents with
            the only means of access to these rooms, and are an
            inseparable feature of their "home." In other words, it
            is not any inherent nature of a hallway that controls,
            but rather what the hallway links (i.e. individual self-
            contained living units versus shared traditional living
            areas).

            [Ibid.]

      Here, the court's decision that defendant enjoyed no expectation of

privacy in the hallway was based primarily, if not exclusively, on the fact that

the closed front door to the residential structure on Spring Street was unlocked

around 10:00 a.m. on March 19, 2016, and, according to Estevez, was

unsecured as the "force of [his] knock" caused it to open. From that fact alone,

the court concluded that the common areas, which the police twice entered,

and specifically the second floor hallway outside defendant's room, were open



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to the public, thereby eviscerating defendant's privacy interest. We believe the

court's conclusion is unsupported for the following reasons.

      First, even if we ignore Estevez's certified statement in his warrant

application that there were two, not one, closed front doors at the Spring Street

dwelling, it is undisputed that the front door Estevez knocked on was closed,

not open, and was equipped with a lock. The State elicited no facts at the

suppression hearing to establish that the door was routinely left unlocked, that

the public routinely entered the common areas, or that such an inference was

reasonable based on any other evidence indicating the common area was open

to the public. Cf. City of Evanston v. Hopkins, 71 N.E.2d 209 (Ill. App. Ct.

1947) (abstract) (upholding police entry into a rooming house where there was

an open door and a "Public Telephone" sign at the entrance).

      As for the State's claim that an unlocked front door renders any

expectation of privacy unreasonable, in our view, the fact that the front door

was not locked, like the doors in Jefferson and Sencion were, while relevant, is

not dispositive. As noted, Estevez confirmed that the front door possessed a

lock and was closed when he first approached it. In addition, the lack of proof

that the communal areas were open to the public supports the conclusion that

defendant had a reasonable expectation of privacy in the second floor hallway.

Compare Berlow, 284 N.J. Super. at 360 (noting that "the mere description" of



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certain premises as a "rooming house" does not establish the dwelling is open

to the public) and Booth, 455 A.2d at 1354 (concluding that rooming house

residents "had a legitimate expectation of privacy in the front hallway of the

house they shared, which was not obviously a rooming house open to the

general public") with Smith, 154 A.3d at 667 (finding no expectation of

privacy where roomers had a "custom" of leaving their front door unlocked).

Here, the evidence showed only that the front door was unlocked around 10:00

a.m. on March 19, 2016, but not at any other time.

      In addition, as Professor LaFave has observed, "the absence of a lock on

the premises is typically viewed as manifesting that hallways and other

common areas are open to the public when the place is an apartment building,

hotel or motel, but not when the place is a one-unit residence." 1 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b) p.

745 (5th ed. 2012). In discussing living arrangements like those enjoyed by

defendant, however, LaFave explained:

            With respect to a rooming house, the better view is
            that except in the case in which it is very obvious from
            other circumstances that the rooming house is open to
            the general public, a rooming house is to be treated in
            this respect as if it were a single-unit dwelling, so that
            an unlocked or even open outer door cannot be treated
            by the police as alone manifesting an invitation to
            enter.




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            [2 Wayne R. LaFave et al., Criminal Procedure §
            3.2(c) p. 89 n.118 (4th ed. 2015).]

      Based on Estevez's testimony, the residential structure on Spring Street

was a rooming or boarding house with communal living arrangements, akin to

the home in Titus. In that regard, we agree with the observation by the Titus

court that "it is not any inherent nature of a hallway that controls, bu t rather

what the hallway links (i.e., individual self-contained living units versus

shared traditional living areas)." 707 So.2d at 711. Here, Estevez testified to a

single communal bathroom connected by the hallway outside defendant's

room. Further, although the record does not contain direct evidence that the

home had a communal kitchen, the State did not establish that the rooms had

separate kitchens considering Estevez's observation that defendant's spartan

eight foot by eight foot room contained but a mattress, a window, a dresser,

and personal property on the floor. See Sencion, 454 N.J. Super. at 32 ("The

State bears the burden of justifying a warrantless search or seizure.").

      Finally, as noted, the police entered the Spring Street dwelling on two

separate occasions.   To the extent there was any urgent need to cross the

threshold of the home initially, such cause was addressed when the police

cleared the common areas. The record contains no support for the warrantless

reentry of the premises or the police's presence outside defendant's room, and

we decline to endorse an "inroad[] upon the reasonable expectations of privacy

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of the lesser situated of our citizens who are forced by economic circumstances

to reside in rooming houses." See Titus, 707 So.2d at 710 (quoting People v.

Garriga, 596 N.Y.S.2d 25, 29 (App. Div. 1993)). Accordingly, we determine

that society is willing to treat as private the space between a person's bedroom

and bathroom in such settings.

      In sum, we conclude that because the police did not have a warrant, and

the State failed to establish that the common areas of the Spring Street

dwelling were open to the public, the officers' second entry that led to

defendant's arrest and the seizure of the marijuana and gun was

constitutionally impermissible. Therefore, the plain view doctrine does not

justify the government's warrantless search. Thus, the State failed to carry its

burden of establishing that an exception to the warrant requirement justified

the entry into the home.

      Reversed.




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