                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-2458-14T2


STATE OF NEW JERSEY,
                                               APPROVED FOR PUBLICATION

            Plaintiff-Appellant,                     July 1, 2015

v.                                               APPELLATE DIVISION

AARON JESSUP,

          Defendant-Respondent.
________________________________

            Submitted June 2, 2015 – Decided July 1, 2015

            Before Judges Koblitz, Haas and Higbee.

            On appeal from Superior Court of New Jersey,
            Law Division, Hudson County, Indictment No.
            14-06-1080.

            Gaetano T. Gregory, Acting Hudson County
            Prosecutor, attorney for appellant (Megan B.
            Kilzy, Assistant Prosecutor, on the brief).

            Joseph E. Krakora, Public Defender, attorney
            for   respondent    (Lauren   S.   Michaels,
            Assistant Deputy Public Defender, of counsel
            and on the brief).


     The opinion of the court was delivered by

KOBLITZ, J.A.D.

     After a suppression hearing, and with leave granted, the

State   appeals     from   the   December      17,   2014   order     granting

defendant   Aaron    Jessup's    motion   to    suppress    the     controlled
dangerous substances (CDS) found on top of a tire of a car

parked in the driveway of an abandoned home in Jersey City.                           We

reverse, concluding that defendant had no expectation of privacy

in a bag containing CDS that the police saw him place on top of

a car's rear tire.

    The     testimony    at    the   motion       to    suppress       revealed      the

following facts.        On April 2, 2014, at 9:50 p.m., Jersey City

Police   Officer    Burgess    set   up       surveillance      using    binoculars.

Ten minutes later he saw defendant enter into a driveway located

on property with a boarded up residence with broken windows that

he knew through lengthy observation had been abandoned.                       Once in

the driveway defendant approached a red four-door Corolla with

no license plates, which was parked with the rear of the vehicle

facing    the     street.       Officer         Burgess       observed,       through

binoculars, as defendant removed a zip-lock bag from the top of

the rear driver's side tire and took items from the bag.                           After

defendant   was     finished   removing        the    items     from    the   bag,    he

placed the zip-lock bag back on top of the rear driver's side

tire.    Defendant then exchanged what he had retrieved from the

zip-lock bag for money given to him by another man (the buyer).

    After witnessing the transaction between defendant and the

buyer,    Burgess    radioed    to   police          officers     located     on     the

perimeter to stop the buyer, who had begun walking away from the




                                          2                                   A-2458-14T2
area.       The buyer was stopped shortly after 10:00 p.m.                           The buyer

had on his person two glassine bags containing heroin, stamped

with       the    logo       "crazy,"      and     two    vials     with      a    yellow    cap

containing cocaine.

       Upon       direction         from    Officer       Burgess,      thirty-four         bags

containing heroin, stamped with the logo "crazy," and six vials

with yellow caps containing cocaine were recovered from the zip-

lock plastic bag on top of the rear tire of the red Corolla.

Defendant was arrested later that night, at approximately 11:00

p.m., with $189 on his person.                     He was driving his grandmother's

minivan.         No car was registered in his name.

       A    State's          witness,      who   was     going    to   testify       that   the

residence was abandoned, did not appear timely to testify at the

suppression hearing.                Defense counsel indicated that he would be

willing          to    stipulate        that     the     driveway      was    on     abandoned

property, stating, "Whether or not the house is abandoned, we

don't think that has a lot of bearing on really the heart of the

issue,       so       we     are   cool     with       just   moving     on       without   the

testimony."                Based   on   that     agreement,      the   hearing       proceeded

without that witness.                   No evidence was produced regarding the

owner of the red Corolla, nor did defendant testify.

       The motion court was not called upon to make credibility

determinations.               It accepted the State's testimony and granted




                                                   3                                  A-2458-14T2
defendant's motion based on its finding that, in spite of the

contrary stipulation, the State had not demonstrated that the

home was abandoned as required by State v. Brown, 216 N.J. 508,

529 (2014), nor that exigent circumstances existed sufficient to

justify    the    search     of   the     red    Corolla    without      a   warrant,

pursuant to State v. Colvin, 123 N.J. 428, 429 (1991).

    When reviewing a trial court's decision on a motion to

suppress     evidence,       we   defer     to    the   trial    court's      factual

findings "so long as those findings are supported by sufficient

credible evidence in the record."                State v. Hubbard, __ N.J. __,

__ (2015) (slip op. at 14) (citations omitted).

    However, "[w]hether the facts found by the trial court are

sufficient       to   satisfy     the     applicable     legal    standard      is    a

question of law subject to plenary review on appeal."                        State v.

Cleveland,    371     N.J.    Super.      286,   295    (App.    Div.)   (citations

omitted), certif. denied, 182 N.J. 148 (2004).                   We are not bound

by the legal conclusions of a trial court.                 State v. Gandhi, 201

N.J. 161, 176 (2010) (citations omitted).                  "[C]onclusions of law

are reviewed de novo."             Zaman v. Felton, 219 N.J. 199, 216

(2014).

    The United States and New Jersey Constitutions guarantee an

individual's right to be free from "unreasonable searches and

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




                                           4                                 A-2458-14T2
warrantless search is "'presumed invalid unless it falls within

one of the recognized exceptions to the warrant requirement.'"

State v. Wilson, 178 N.J. 7, 12 (2003) (quoting State v. Cooke,

163 N.J. 657, 664 (2000)).               "The State bears the burden of

proving by a preponderance of the evidence the validity of a

warrantless search."        State v. Edmonds, 211 N.J. 117, 128 (2012)

(citation omitted).

    We     agree   with   the    State   that    defendant    had    no    privacy

interest in the top of the rear tire of the red Corolla.                       Thus

concepts    such    as    "the     automobile      exception"       or    "exigent

circumstances,"     which    are   explained      by   our   Supreme     Court   in

Colvin, a case dealing with a search of the interior of a parked

car, have no relevance here.         Colvin, supra, 123 N.J. at 429-30.

The CDS were hidden in a clear plastic bag on top of the tire.

Officer Burgess could see defendant retrieve the CDS through the

permissible use of binoculars.               State v. Fuhs, 265 N.J. Super.

188, 190 (App. Div.) (holding that the use of binoculars by a

police officer to observe "defendant's rear-yard marijuana crop

did not violate the privacy protections afforded by the Fourth

Amendment"), certif. denied, 134 N.J. 486 (1993).

    It was not necessary to open the door of the car, or reach

inside the car, or even search around the underside of the car,

to obtain the CDS.        Defendant had no reasonable expectation of




                                         5                                A-2458-14T2
privacy in the area on top of the rear tire on the exterior of

the car.    See New York v. Class, 475 U.S. 106, 114, 106 S. Ct.

960, 966, 89 L. Ed. 2d 81, 90 (1986) (noting that a "VIN's[1]

mandated visibility makes it more similar to the exterior of the

car than to the trunk or glove compartment.          The exterior of a

car, of course, is thrust into the public eye, and thus to

examine it does not constitute a 'search.'").

       A person has no legitimate expectation of privacy in the

exterior of a tire on a car, which is easily accessible to the

public, and visible through the use of a flashlight.            See State

v. Reininger, 430 N.J. Super. 517, 534 (App. Div.) (citation

omitted) (holding that an officer's "use of a flashlight to

illuminate the firearm cases on the rear seat of the SUV did

'not   transform   an    otherwise   reasonable   observation    into   an

unreasonable    search     within    the   meaning    of   the     Fourth

Amendment.'"), certif. denied, 216 N.J. 367 (2013).

       A person who secretes an object on top of a tire assumes

that vehicle will not move.      The security of the hiding place is

dependent on the vehicle remaining parked.        Hiding CDS on a tire

is comparable to hiding CDS in a tin under a car.          We have held


1
  The primary and most visible identifying number placed in a car
at the point of production is called the vehicle identification
number (VIN).    State v. Lungsford, 167 N.J. Super. 296, 299
(App. Div. 1979).



                                     6                           A-2458-14T2
that a defendant who put CDS in such a tin "had no protected

Fourth    Amendment        rights    in     the   narcotics      stash   maintained

remotely from his person."                 State v. Burgos, 185 N.J. Super.

424, 426 (App. Div. 1982).

       The driveway where the car was parked offers no greater

expectation of privacy.            In Gibson, we explained that:

              [The]   defendant's   movement    about   the
              driveway, whether it was owned by him, his
              mother or any other person, was within the
              public view and observed from the public
              thoroughfare.    Although the driveway was
              close to the house, the fence along the
              front of the house did not prevent entrance
              through the normal and expected use of the
              driveway, and the driveway was clearly
              observable from the street.      Accordingly,
              [the] defendant could have no reasonable
              expectation of privacy in the driveway.

              [State v. Gibson, 318 N.J. Super. 1, 10-11
              (App.   Div.   1999)   (internal  citation
              omitted).]

       The red Corolla was not registered to defendant, and could

well   have    been   abandoned,       as    it   was   parked    without   license

plates in the driveway of an abandoned residence.                    Regardless of

the    ownership      of     the     red     Corolla,    the      constitutionally

significant fact is that the CDS were hidden outside the car, on

top of the rear tire.              Defendant had no reasonable expectation

of privacy and thus a search warrant was not required.

       "The purpose of the exclusionary rule is to deter police

misconduct and to preserve the integrity of the courts."                       State



                                            7                               A-2458-14T2
v.   Johnson,   118   N.J.   639,   651   (1990)   (citations   omitted).

Seizing the zip-lock bag of CDS from the top of the rear tire of

the red Corolla without a warrant constituted appropriate law

enforcement action.

      Reversed.




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