State of New Jersey v. Dqwan A. Taylor

NOT FOR PUBLICATION WITHOUT THE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.

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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.

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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

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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

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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

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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

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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.

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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)

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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.

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