                                NOT FOR PUBLICATION WITHOUT THE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




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0952-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICKY RICHARDSON, a/k/a
MARK RICHARDSON,

     Defendant-Appellant.
____________________________

                    Argued February 10, 2020 – Decided May 4, 2020

                    Before Judges Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 15-08-
                    0899.

                    Peter Thomas Blum, Assistant Deputy Public
                    Defender argued the cause for appellant (Joseph
                    E. Krakora, Public Defender, attorney; Peter
                    Thomas Blum, of counsel and on the briefs).

                    Lila Bagwell Leonard, Deputy Attorney General
                    argued the cause for respondent (Gurbir S.
                    Grewal, Attorney General, attorney; Lila B agwell
                    Leonard, of counsel and on the brief).
PER CURIAM

      Defendant Ricky Richardson appeals from a judgment of conviction

following his guilty plea to possession of a controlled dangerous substance

(CDS), N.J.S.A. 2C:35-10(a)(1). He challenges the trial court's denial of his

motion to suppress evidence, arguing:

            THE     WARRANTLESS       SEARCH     OF
            [DEFENDANT'S] BAG WAS ILLEGAL, AND THE
            ABANDONMENT          EXCEPTION     WAS
            INAPPLICABLE, BECAUSE THE OFFICER SAW
            [DEFENDANT] DROP THE BAG, BUT DID NOT
            QUESTION [HIM] TO DETERMINE IF HE
            KNOWINGLY          AND      VOLUNTARILY
            RELINQUISHED IT[.]

Rejecting defendant's contention that law enforcement officers were required to

question him to determine if he knowingly and voluntarily relinquished his

interest in the bag, we conclude defendant abandoned the seized item and affirm.

      The trial court credited the suppression hearing testimony of the detective1

who seized the bag containing the CDS while surveilling a two-apartment house

as part of an investigation of a string of burglaries unrelated to this case. Over

a three to four hour period, he observed four to five people approach the house



1
  We recognized in our prior decision that the trial court found the detective
"was a credible witness." State v. Richardson, No. A-1866-16 (App. Div. Mar.
22, 2018) (slip op. at 3 n.2).
                                                                          A-0952-18T4
                                        2
and yell, throw rocks at a window or make a telephone call. Defendant—with

whom the detective was familiar—then opened a second-floor window, leaned

his head through the opening and talked to the people who approached. The

people went "to the back door at the top of a flight of stairs. The light next to

the door [turned] on, the people [entered] the residence for three to four minutes,

and then [left]."

      At approximately 4:00 a.m., the detective posted so he could observe the

rear of the residence to ensure that no one tried to leave when other law

enforcement officers executed arrest warrants for other residents suspected in

the burglaries. As the detective heard the entry team breach the door and enter

the residence, he heard a window above him open. A plastic bag dropped from

the window and landed two to three feet from him. He looked up and saw only

defendant, from the chest up, leaning out the window.

      The detective retrieved the bag, opened it and found a latex glove inside

of which were thirty-four decks of heroin. The detective placed the bag back on

the ground and entered the building to assist the arresting officers.            He

eventually located defendant "in bed with another individual," ostensibly

sleeping. After arresting defendant, he looked out the window of the room in

which he found defendant and determined it was the same window in which he


                                                                           A-0952-18T4
                                        3
had seen defendant; he also saw the bag that was thrown from the window. The

detective and a sergeant retrieved the bag and turned it over to another detective.

      Defendant argues the trial court erred by applying precedent he contends

is now overruled by our Supreme Court's holdings in State v. Johnson, 193 N.J.

528, 548-49 (2008), and State v. Carvajal, 202 N.J. 214, 225 (2010), and

concluding defendant abandoned the bag when, "aware that a number of police

officers were outside of the residence," he "tossed the bag with the heroin out of

the window onto the ground" putting "a significant distance between himself

and the bag[,]" "[i]n an attempt to prevent police from finding the heroin in the

residence or on his person[.]"

      Our "review of a [trial court's] factual findings in a suppression hearing is

highly deferential." State v. Gonzales, 227 N.J. 77, 101 (2016). Those findings

should be upheld if they are supported by sufficient competent evidence in the

record, State v. Minitee, 210 N.J. 307, 317 (2012), and should only be disturbed

if they were "so clearly mistaken 'that the interest of justice demand intervention

and correction,'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v.

Johnson, 42 N.J. 146, 162 (1964)). The trial court's application of its factual

findings to the law, however, is subject to plenary review. See e.g., State v.

Gamble, 218 N.J. 412, 425 (2014).


                                                                           A-0952-18T4
                                        4
      In Johnson, the Court hearkened back to its decision in State v. Alston, 88

N.J. 211 (1981), in which it "reaffirmed New Jersey's long-established rule of

standing in cases involving challenges to the lawfulness of searches and seizures

under the Fourth Amendment of the Federal Constitution and Article I,

Paragraph 7 of the New Jersey Constitution," 193 N.J. at 541 (citing Alston, 88

N.J. at 228), and held "under our State Constitution, a criminal defendant has

standing to move to suppress evidence from a claimed unreasonable search or

seizure 'if he has a proprietary, possessory or participatory interest in either the

place searched or the property seized,'" ibid. (quoting Alston, 88 N.J. at 228).

The Court "eschewed" the United States Supreme Court's replacement of the

federal automatic standing rule under the Fourth Amendment with "the

'amorphous "legitimate expectations of privacy in the area searched"

standard[,]'" id. at 542 (quoting Alston, 88 N.J. at 228), holding "that standard

gave insufficient protection to a person's property seized by law enforcement

officials," antipodal to the Fourth Amendment's parallel in our State

Constitution, ibid. (citing Alston, 88 N.J. at 226).

      The Johnson Court "carved out 'a narrow exception to our automatic

standing rule,'" Carvajal, 202 N.J. at 223 (quoting Johnson, 193 N.J. at 549), and

held "a defendant will not have standing to object to the search or seizure of


                                                                            A-0952-18T4
                                         5
abandoned property," ibid. (quoting Johnson, 193 N.J. at 548-49). "For the

purposes of standing, property is abandoned when a person, who has control or

dominion over property, knowingly and voluntarily relinquishes any possessory

or ownership interest in the property and when there are no other apparent or

known owners of the property." Johnson, 193 N.J. at 549; see also Carvajal,

202 N.J. at 225. That polestar leads to our conclusion that the trial court

correctly determined defendant abandoned the bag.

       Defendant relinquished possession of the bag when he threw it from the

window to the backyard shared by the residents of the two-apartment residence.

No one other than defendant was seen at his bedroom window throughout the

evening and, importantly, immediately after the bag was thrown. Unlike the

defendant in Johnson, from whose hands the container was wrested by a police

sergeant, 193 N.J. at 537, defendant freely distanced himself from the bag,

obviously fearing that he would be caught, literally, holding it. He made no

effort to retrieve the bag after he threw it; indeed, he obviously got into bed. It

strains logic to think defendant would reclaim the bag knowing its contents

subjected him to prosecution. And, unlike the bag in Johnson, no person other

than the one who threw it—defendant—may have claimed a property interest in

it. Id. at 550.


                                                                           A-0952-18T4
                                        6
      We reject defendant's argument that law enforcement officers are required

to question a defendant about their ownership of property because, under

Carvajal, "the property cannot be considered abandoned unless" a defendant

"knowingly and voluntarily relinquishes any possessory or ownership interest in

the property and when there are no other apparent or known owners of the

property." 202 N.J. at 223 (quoting Johnson, 193 N.J. at 549). Neither Carvajal

nor Johnson signaled a requirement that police so inquire of a person who

affirmatively abandons an item. As defendant acknowledges in his merits brief,

"[t]his was not some unattended bag on a train platform." Thus, Carvajal is

inapposite because there, defendant denied ownership or possession of any

luggage and did not have a claim ticket, requiring police to verify that the

unclaimed duffel bag ultimately searched was not the property of any of the

other bus passengers.    Id. at 218-220.    Likewise, Johnson is distinguished

because, there, other household members could have claimed the duffel bag

carried by the defendant, and the defendant's responses to police questioning

regarding ownership of the bag were equivocal. 193 N.J. at 550.

      Here, defendant's actions spoke louder than any words. Police did not

have to question him to ascertain his interest in the bag of CDS or that his intent




                                                                           A-0952-18T4
                                        7
was to voluntarily abandon the bag. His intentions were better manifested by

what he did than by anything he could have said.

      Requiring police to question a defendant who discards an item under

circumstances such as those presented here crosses against the grain of the

            underlying [three-fold] rationale for our automatic
            standing rule[.] First, a person should not be compelled
            to incriminate himself by having to admit ownership of
            an item that he is criminally charged with possessing in
            order to challenge the lawfulness of a search or seizure.
            In other words, a person should not have to sacrifice
            one constitutional right to assert another. Second, the
            State should not be placed in the position of taking
            seemingly conflicting positions, on the one hand
            prosecuting a defendant for possessing an item in
            violation of the law while on the other arguing that the
            defendant did not, for standing purposes, possess a
            privacy interest in the property seized. Last, by
            allowing a defendant broader standing to challenge
            evidence derived from unreasonable searches and
            seizures under our State Constitution, we increase the
            privacy rights of all New Jersey's citizens and
            encourage law enforcement officials to honor
            fundamental constitutional principles.

            [Id. at 543 (citations omitted).]

      If questioned by police, defendant could either deny ownership or

possession of the bag he was seen discarding or incriminate himself by admitting

the bag was his. We see no purpose in such questioning which certainly does

not protect defendant's rights or those of any other person, considering no one


                                                                        A-0952-18T4
                                        8
other than defendant threw the bag, was in proximity to defendant when he threw

it, or was otherwise in a position to claim an interest in the bag.

      In our judgment, the trial court correctly determined the State proved by

a preponderance of the evidence that defendant abandoned the seized bag. See

Carvajal, 202 N.J. at 223-24; Johnson, 193 N.J. at 548 n.4.

      We decline to consider the State's argument that the seizure of the bag was

justified under the exigent circumstances exception to the warrant requirement.

As we noted in our prior decision, defendant did not raise this issue to the trial

court during the first suppression motion. Richardson, slip op. at 8 n.4. Nor did

the State brief or argue the issue to the trial court after we determined the plain

view exception to the warrant requirement did not justify the seizure and search

of the bag and remanded this matter to the trial court for its consideration of the

abandonment issue.      The issue is not jurisdictional in nature, nor does it

implicate public interest; we will not consider it. State v. Walker, 385 N.J.

Super. 388, 410 (App. Div. 2006).

      Affirmed.




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