State v. Ricky Wright (073137)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

State v. Ricky Wright (A-64-13) (073137)

Argued January 5, 2015 -- Decided May 19, 2015

RABNER, C.J., writing for a unanimous Court.

The issue in this appeal is whether the “third-party intervention” or “private search” doctrine applies to a

warrantless search of a home. The doctrine originally addressed situations like the following: Private actors search

an item, discover contraband, and notify law enforcement officers or present the item to them. The police, in turn,

replicate the search without first getting a warrant. Because the original search is carried out by private actors, it

does not implicate the Fourth Amendment. And if the officers’ search of the item does not exceed the scope of the

private search, the police have not invaded a defendant’s protected privacy interest and do not need a warrant. The

State now seeks to expand the doctrine to a very different setting: the search of a private home.

In this case, co-defendant Evangeline James and her young children lived in an apartment on the first floor

of a two-family home in Asbury Park. Defendant Ricky Wright, James’ boyfriend, stayed at the apartment about

three to four nights per week. On Sunday evening, March 29, 2009, James called her landlord, Alfred Santillo, and

reported a “major water leak” in the kitchen ceiling. Santillo told James to shut off the main water valve and said

that he would stop by with a plumber the next morning. Santillo and the plumber, Nicholas Alexo, arrived at the

apartment before noon on Monday. Because no one was home, Santillo called James, who did not answer her

phone. After waiting about a half hour, Santillo let himself into the apartment, as he had done on prior occasions.

Santillo and Alexo saw water and sewage leaking from the kitchen ceiling. Because the water pipes in the

kitchen led to the back of the apartment, Alexo went to the rear bedroom to check for other leaks. Alexo saw a

small bag of marijuana on top of a nightstand. Inside an open drawer of the nightstand, he also saw a small box that

he believed contained powder or crack cocaine. Alexo called Santillo into the bedroom and showed him the items.

They then called the police. Officer Carl Christie responded. He walked into the apartment and looked around the

kitchen and bedroom area. He, too, noticed the drugs and found a scale as well. Neither Santillo nor Alexo had told

him about the scale. Christie called for back-up. A number of officers responded, including Officer Lorenzo

Pettway of the narcotics unit. The police conducted a full search moments later, with the resident’s consent, and

found other contraband, including drug paraphernalia and a handgun loaded with hollow-point bullets. After the

search, the police arrested James. Defendant Wright arrived as they were leaving the apartment, and the police

arrested him as well.

A Monmouth County grand jury indicted Wright and James on various drug offenses, second-degree

possession of a firearm in the course of committing a drug offense, second-degree possession of a firearm for an

unlawful purpose, and fourth-degree possession of a prohibited weapon, namely, body armor piercing bullets.

Wright moved to suppress the evidence. During the hearing, Pettway conceded that “it wasn’t particularly urgent . .

. to search right away.” He acknowledged that the police had time to secure the house and apply for a search

warrant. The trial court denied Wright’s motion to suppress, concluding that the search of the apartment did not

violate the Fourth Amendment. The judge relied on the third-party intervention doctrine and explained that

Christie’s inspection did not exceed the scope of the search initially done by private citizens. As a result, the court

concluded that Christie’s conduct did not violate the Federal or State Constitutions. The court also found that James

voluntarily and knowingly consented to the full search conducted by Pettway and others.

Wright appealed and the Appellate Division affirmed. State v. Wright, 431 N.J. Super. 558 (App. Div.

2013). The panel agreed that the evidence seized could be admitted under the third-party intervention doctrine

because (1) Santillo’s initial entry “was lawful and did not trample upon [James’s] property rights or reasonable

privacy expectations,” and (2) Officer Christie’s entry was limited to verifying Santillo’s observations.

1

The Court granted Wright’s petition for certification limited to the following issue: “whether the third

party intervention doctrine is applicable to permit police to search residential property without a warrant.” 217 N.J.

283 (2014).

HELD: The third-party intervention or private search doctrine does not exempt law enforcement’s initial search of

defendant’s home from the warrant requirement. Absent exigency or some other exception to the warrant

requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has

already searched the area and notified law enforcement.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey

Constitution guard against warrantless searches. The first clause of each guarantees that “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated.” The United States Supreme Court recently reaffirmed the heightened status of the home under the

Constitution. The Court observed that “when it comes to the Fourth Amendment, the home is first among equals”

and stands “at the Amendment’s very core.” Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013). A warrantless

search of a private dwelling is “presumptively invalid,” State v. Lamb, 218 N.J. 300, 315 (2014), and calls for

“particularly careful scrutiny,” State v. Bolte, 115 N.J. 579, 583 (1989). To overcome that presumption, the State

must show that a warrantless search falls within a recognized exception to the warrant requirement. (pp. 12-15)

2. The third-party intervention doctrine has its roots in Burdeau v. McDowell, in which the Supreme Court held that

the Fourth Amendment’s warrant requirement applies only to government agents, not private actors. 256 U.S. 465

(1921). The Supreme Court reaffirmed that principle in Walter v. United States, 447 U.S. 649 (1980). Neither the

United States Supreme Court nor this Court has applied the third-party intervention or private search doctrine to the

search of a private home. That would represent a significant expansion of the doctrine. Police would no longer

simply be asked to view a discrete set of items turned over to them. Instead, they would walk through a private

residence and observe far more. Courts around the country have wrestled with this question. Some have expressly

declined to expand the doctrine to private dwellings. Other courts have permitted warrantless searches of a private

home that did not exceed the scope of an earlier private search. (pp. 15-26)

3. The United States Supreme Court has never applied the private search doctrine to the home, and this Court does

not glean from recent decisions that it would allow such an extension. Relying on the protections in the State

Constitution, the Court concludes that the private search doctrine cannot apply to private dwellings. Absent

exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home

and conduct a search, even if a private actor has already searched the area and notified law enforcement. A landlord,

like any other guest, may tell the police about contraband he or she has observed. And the police, in turn, can use

that information to apply for a search warrant. But that course of events does not create an exception to the warrant

requirement. To hold otherwise would result in a sizeable exception to the requirement and expand the private

search doctrine beyond the minimal intrusion it originally sanctioned. An invitation to a plumber, a dinner guest, or

a landlord does not open the door to one’s home to a warrantless search by a police officer. In addition, in this case,

the State cannot rely on the plain view doctrine to justify the seizure of the scale because the officer was not

“lawfully in the viewing area.” (pp. 26-30)

4. The third-party intervention or private search doctrine does not exempt law enforcement’s initial search of

defendant’s home from the warrant requirement. Nothing in this opinion, however, is intended to cast doubt on the

private search or third-party intervention doctrine in its original form. When the police reexamine property that has

been searched by a private actor and presented to law enforcement in a non-residential context, neither the Fourth

Amendment nor the State Constitution requires a warrant. (pp. 30-32)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court

for further proceedings consistent with the Court’s opinion.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in

CHIEF JUSTICE RABNER’s opinion. JUDGE CUFF (temporarily assigned) did not participate.

2

SUPREME COURT OF NEW JERSEY

A-64 September Term 2013

073137

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY WRIGHT,

Defendant-Appellant.

Argued January 5, 2015 – Decided May 19, 2015

On certification to the Superior Court,

Appellate Division, whose opinion is

reported at 431 N.J. Super. 558 (App. Div.

2013).

Rochelle M.A. Watson, Assistant Deputy

Public Defender, argued the cause for

appellant (Joseph E. Krakora, Public

Defender, attorney; Sylvia M. Orenstein,

Assistant Deputy Public Defender, of counsel

and on the briefs).

Steven A. Yomtov, Deputy Attorney General,

argued the cause for respondent (John J.

Hoffman, Acting Attorney General of New

Jersey, attorney).

Joseph A. Pace argued the cause for amicus

curiae American Civil Liberties Union of New

Jersey (Gibbons, attorneys; Mr. Pace and

Lawrence S. Lustberg, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In this case, we consider whether the “third-party

1

intervention” or “private search” doctrine applies to a

warrantless search of a home.

The doctrine originally addressed situations like the

following: Private actors search an item, discover contraband,

and notify law enforcement officers or present the item to them.

The police, in turn, replicate the search without first getting

a warrant. See, e.g., United States v. Jacobsen, 466 U.S. 109,

104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Because the original

search is carried out by private actors, it does not implicate

the Fourth Amendment. And if the officers’ search of the item

does not exceed the scope of the private search, the police have

not invaded a defendant’s protected privacy interest and do not

need a warrant.

The State now seeks to expand the doctrine to a very

different setting: the search of a private home. In this case,

a resident reported a leak in her apartment to her landlord, who

showed up the following day with a plumber. The landlord and

plumber entered the apartment while no one was home, spotted the

leak in the kitchen, and checked elsewhere for additional leaks.

In the rear bedroom, the plumber saw drugs on top of a

nightstand and inside an open drawer. He and the landlord

notified the police.

Instead of using that information to apply for a search

warrant, an officer walked into the apartment and looked around

2

the kitchen and bedroom area. He, too, noticed the drugs and

found a scale as well. The police conducted a full search

moments later, with the resident’s consent, and found other

contraband.

The Federal and State Constitutions both recognize the

sanctity and privacy of a person’s home. The United States

Supreme Court and this Court have repeatedly emphasized that a

person’s home is entitled to the highest form of protection

against warrantless searches. The police, therefore, must get a

warrant before they may search a home, unless an exception to

the warrant requirement applies.

We do not find that the third-party intervention doctrine

qualifies as an exception here. The United States Supreme Court

has not applied the private search doctrine to private

dwellings, and we decline to extend the doctrine in that way

under the State Constitution. Homes are filled with intimate,

private details about peoples’ lives that are ordinarily free

from government scrutiny. An officer’s entry into a home is a

far greater intrusion than a search of a package presented to

the police. Also, inviting a plumber or dinner guest into a

private home does not carry with it an invitation to the police.

Residents of course run the risk that any private actor

they invite into their home may tell the police what they have

seen. And the police, in turn, can use that information to

3

apply for a search warrant. In this case, because the police

did not obtain a warrant before first entering defendant’s

apartment, the officer’s original search did not comply with the

State Constitution. The State does not rely on exigent

circumstances here. When those circumstances are present, a

warrant is not required. State v. Earls, 214 N.J. 564, 569

(2013).

We therefore reverse the judgment of the Appellate

Division, which affirmed the trial court and upheld the search.

We also remand the matter to the trial court to determine

whether the initial unlawful search tainted the later consent

search.

I.

The following facts are taken from testimony presented at a

pretrial suppression hearing. Three police officers and co-

defendant Evangeline James testified; the trial court credited

the officers’ testimony and found that James was not credible.

James and her three young children lived in an apartment on

the first floor of a two-family home in Asbury Park. Defendant

Ricky Wright, James’s boyfriend and the father of her youngest

child, stayed at the apartment about three to four nights per

week.

On Sunday evening, March 29, 2009, James called her

landlord, Alfred Santillo, and reported a “major water leak” in

4

the kitchen ceiling. Santillo told James to shut off the main

water valve and said that he would stop by with a plumber the

next morning to fix the leak.

Santillo and the plumber, Nicholas Alexo, arrived at the

apartment before noon on Monday. Because no one was home,

Santillo called James, who did not answer her phone. After

waiting about a half hour, Santillo let himself into the

apartment, as he had done on prior occasions.

Santillo and Alexo saw water and sewage leaking from the

kitchen ceiling. Because the water pipes in the kitchen led to

the back of the apartment, Alexo went to the rear bedroom to

check for other leaks. Alexo saw a small bag of marijuana on

top of a nightstand. Inside an open drawer of the nightstand,

he also saw a small box that he believed contained powder or

crack cocaine. Alexo called Santillo into the bedroom and

showed him the items. They then called the police.

Officer Carl Christie responded shortly before 1 p.m. He

spoke with Santillo and Alexo, who explained what happened and

what they had seen. Christie entered the apartment without a

search warrant. Along with Santillo and Alexo, he saw the leak

in the kitchen and then went to the rear bedroom. Christie

noticed a small nightstand with marijuana on it and, in an open

drawer of the nightstand, he saw an open cardboard box with bags

of cocaine inside. Christie also spotted a small scale in the

5

same drawer. Neither Santillo nor Alexo had told him about the

scale.

Christie then called for back-up while Alexo and Santillo

tried to repair the leak. A number of officers responded,

including Officer Lorenzo Pettway of the narcotics unit. At

this point, six officers were on the scene.

Christie briefed Pettway and told him about the drugs in

the bedroom. Santillo and Alexo also told Pettway what had

taken place. Pettway got James’s phone number from Santillo and

called her. He relayed that James’s landlord had found “some

items” in her apartment and asked her to return so that he could

retrieve them. James arrived about fifteen to twenty minutes

later.

Pettway and James then spoke outside the apartment.

Pettway explained that drugs had been found inside and asked for

consent to remove them and search the apartment for additional

narcotics. Pettway testified that James agreed and signed a

consent to search form.

During the search that followed, the officers found the

following items in addition to the drugs and scale that Christie

had observed: a handgun loaded with hollow-point bullets --

inside a partially opened red and black book bag; a little less

than one hundred bullets of different caliber sizes -- inside a

black camera bag; a box of baking soda and sandwich bags,

6

commonly used to cut and package cocaine; and a Pyrex plate and

measuring cup, both of which had some powder residue that

appeared to be cocaine.

After the search, the police arrested James. Defendant

Wright arrived as they were leaving the apartment, and the

police arrested him as well. Wright had returned to the

apartment in response to an earlier call from James and the

police.

A Monmouth County grand jury indicted Wright and James in

November 2009. The eight-count indictment charged them with

third-degree possession of cocaine, a controlled dangerous

substance, N.J.S.A. 2C:35-10(a)(1); second-degree possession of

cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2);

third-degree possession of cocaine with intent to distribute

within 1000 feet of school property, N.J.S.A. 2C:35-7; second-

degree possession of a firearm in the course of committing a

drug offense, N.J.S.A. 2C:39-4.1(a); second-degree possession of

a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and,

fourth-degree possession of a prohibited weapon, namely, body

armor piercing bullets, N.J.S.A. 2C:39-3(f) (mistakenly cited as

N.J.S.A. 2C:39-3(e)). Wright alone was also charged with third-

degree making of terroristic threats, N.J.S.A. 2C:12-3, and

second-degree witness tampering, N.J.S.A. 2C:28-5(a).

7

Wright moved to suppress the evidence. During a three-day

hearing, the trial court heard testimony from Christie, Pettway,

and another officer; their testimony is partly summarized above.

James also testified and offered a different account. She

claimed that when she first called Santillo on Sunday, March 29,

he said he would arrive at 4:00 p.m. the next day; that no

dresser drawers were open when she left the apartment on Monday

morning; that when Santillo called her at about 11:00 a.m. on

Monday, she said she would return in forty-five minutes and did

not give him permission to enter the apartment; that when she

arrived, the police told her they had found drugs and a weapon

in the apartment; and, among other things, that she consented to

a search while handcuffed, after the police said they would not

“call DYFS” if she cooperated.

During the hearing, Pettway also conceded that “it wasn’t

particularly urgent . . . to search right away.” He

acknowledged that the police had time to secure the house and

apply for a search warrant.

The trial court denied Wright’s motion to suppress. In a

written opinion, the court accepted and relied heavily on the

officers’ testimony. The judge found that James was

“unreliable, untrustworthy, incredible and in all likelihood

false in her attempt to exculpate her co-defendant who fathered

8

their child and who controls her in a domineering, abusive

relationship.”

The trial court concluded that the search of the apartment

did not violate the Fourth Amendment. The judge relied on the

third-party intervention doctrine, an exception to the warrant

requirement. The court explained that Christie’s inspection did

not exceed the scope of the search initially done by private

citizens. As a result, the court concluded that his conduct did

not violate the Federal or State Constitutions. The court also

found that James voluntarily and knowingly consented to the full

search conducted by Pettway and others.

Wright pled guilty to the entire indictment but did not

waive his right to appeal the suppression ruling. See R. 3:5-

7(d). The trial court sentenced him to an aggregate term of

fifteen years’ imprisonment, with a six-year period of parole

ineligibility. Afterward, the State dismissed all charges

against James.

Wright appealed. In a thorough and thoughtful opinion, the

Appellate Division affirmed. See State v. Wright, 431 N.J.

Super. 558, 564 (App. Div. 2013). The decision reviewed

relevant federal and state case law on the third-party

intervention doctrine and its application to searches of private

dwellings. Id. at 575-87. The opinion underscored how

important it is that “the police’s entry . . . be no greater

9

than the scope of the landlord’s [prior] private observations.”

Id. at 582. In light of the heightened protection the law

provides to private residences, the Appellate Division also

restricted the doctrine’s application in that setting. Id. at

587-88. The panel held that, under the Federal and State

Constitutions,

the third-party intervention doctrine will not

justify a warrantless search resulting from a

landlord or other third party’s entry into a

private residence if it is (1) illegal or

unauthorized, or (2) in violation of the

resident’s property rights or reasonable

expectation of privacy. If such a wrongful

private entry has occurred, it cannot supply

the foundation for an ensuing police search of

the premises, unless, of course, some other

recognized exception to the constitutional

warrant requirement applies. As an additional

limitation, even if the private entry is not

illegal or unauthorized, the third-party

intervention doctrine should not apply if the

intrusion by the private actor and law

enforcement officials, taken as a whole, is

objectively unreasonable.

[Ibid.]

Applying those principles, the panel agreed that the

evidence seized could be admitted because (1) Santillo’s initial

entry “was lawful and did not trample upon [James’s] property

rights or reasonable privacy expectations,” and (2) Officer

Christie’s entry was limited to verifying Santillo’s

observations. Id. at 588. The panel also concluded that there

10

was a sound basis for the trial judge to find that James validly

consented to Pettway’s search. Id. at 595.

We granted Wright’s petition for certification limited to

the following issue: “whether the third party intervention

doctrine is applicable to permit police to search residential

property without a warrant.” 217 N.J. 283 (2014). We also

granted the motion of the American Civil Liberties Union of New

Jersey (ACLU) to appear as amicus curiae.

II.

Wright argues that the third-party intervention doctrine

should not apply to searches of private homes. Because of the

unique status of the home under the Fourth Amendment and the

State Constitution, Wright contends that police must get a

warrant before they can search a private residence, absent

exigent circumstances. As a result, he maintains that the

judgment of the Appellate Division should be reversed.

The State, represented by the Attorney General, counters

that the police lawfully entered James’s residence under the

third-party intervention doctrine to confirm what private actors

had already seen. The State contends that because the police

confined their actions to the scope of the initial private

search, this appeal presents a classic example of why the

doctrine should be upheld in the context of a private residence.

11

The State thus agrees with the judgment of the Appellate

Division but urges that its test be reconsidered. The State

believes that the Appellate Division’s test places too much

emphasis on the private actor’s behavior and should instead

focus on whether the police conduct was reasonable.

The ACLU maintains that the State Constitution “does not

countenance a private search exception to the warrant

requirement.” Amicus argues that, under New Jersey case law,

“limited disclosure” to a third party “does not extinguish an

individual’s reasonable expectation of privacy vis-à-vis the

police.” In addition, the ACLU submits that applying the

doctrine to a search of a private residence violates both the

Fourth Amendment and the State Constitution and does not reflect

how people “protect their privacy in the real world: granting a

plumber entry to fix the pipes does not result in an ‘open

house.’”

The State rejects the ACLU’s reliance on case law that

addresses an individual’s expectation of privacy in information

given to a third party. The private search doctrine, the State

submits, “is more akin to third-party consent law.”

III.

We begin with familiar principles. Both the Fourth

Amendment and Article I, Paragraph 7 of the New Jersey

Constitution guard against warrantless searches. The first

12

clause of each guarantees that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.”

U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Before police

officers may conduct a search, therefore, they must obtain a

warrant or show that a recognized exception to the warrant

requirement applies. Earls, supra, 214 N.J. at 588.

A.

This case involves the search of a home, which raises

special concerns. As the Court has repeatedly observed, the

“physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed.” State v. Lamb,

218 N.J. 300, 314 (2014) (quoting State v. Vargas, 213 N.J. 301,

313 (2013) (quoting United States v. U.S. Dist. Court, 407 U.S.

297, 313, 92 S. Ct. 2125, 2135, 32 L. Ed. 2d 752, 764 (1972)));

State v. Walker, 213 N.J. 281, 289 (2013); State v. Harris, 211

N.J. 566, 595 (2012); State v. Davila, 203 N.J. 97, 112 (2010).

The unique status of the home has been recognized for

centuries. Miller v. United States, 357 U.S. 301, 307, 78 S.

Ct. 1190, 1195, 2 L. Ed. 2d 1332, 1337 (1958) (noting debate in

Parliament in 1763 about search of cottage by King’s forces).

And throughout our nation’s history, one of our “most protected

rights . . . has been the sanctity and privacy of a person’s

home.” State v. Bruzzese, 94 N.J. 210, 217 (1983) (citation

13

omitted), cert. denied, 465 U.S. 103, 104 S. Ct. 1295, 79 L. Ed.

2d 695 (1984). Those interests “are entitled to the highest

degree of respect and protection in the framework of our

constitutional system.” State v. Evers, 175 N.J. 355, 384

(2003); see also United States v. Martinez-Fuerte, 428 U.S. 543,

561, 96 S. Ct. 3074, 3084, 49 L. Ed. 2d 1116, 1130 (1976)

(“[T]he sanctity of private dwellings [is] ordinarily afforded

the most stringent Fourth Amendment protection.”); State v.

Johnson, 168 N.J. 608, 625 (2001) (“‘An individual’s privacy

interests are nowhere more clearly defined or rigorously

protected by the courts than in the home.’” (quoting Kornegay v.

Cottingam, 120 F.3d 392, 399-400 (3d Cir. 1997))).

The United States Supreme Court recently reaffirmed the

heightened status of the home under the Constitution. The Court

observed that “when it comes to the Fourth Amendment, the home

is first among equals” and stands “at the Amendment’s very

core.” Florida v. Jardines, ___ U.S. ___, ___, 133 S. Ct. 1409,

1414, 185 L. Ed. 2d 495, 501 (2013) (internal quotation marks

omitted).

This Court also recently emphasized the preeminent position

of a private residence when it held that the community-

caretaking doctrine, standing alone, could not justify a

warrantless search of a home. Vargas, supra, 213 N.J. at 325.

14

The law, thus, “expresses a clear preference for police

officers to secure a warrant before entering and searching a

home.” State v. Brown, 216 N.J. 508, 527 (2014). A warrantless

search of a private dwelling is “presumptively invalid,” Lamb,

supra, 218 N.J. at 315 (citations omitted), and calls for

“particularly careful scrutiny,” State v. Bolte, 115 N.J. 579,

583, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d

320 (1989). To overcome that presumption, the State must show

that a warrantless search falls within a recognized exception to

the warrant requirement. Lamb, supra, 218 N.J. at 315; see also

Riley v. California, ___ U.S. ___, ___, 134 S. Ct. 2473, 2482,

189 L. Ed. 2d 430, 439 (2014).

B.

The State relies on the third-party intervention doctrine,

also known as the private search doctrine, to justify the

warrantless search in this case. The doctrine has its roots in

Burdeau v. McDowell, in which the Supreme Court held that the

Fourth Amendment’s warrant requirement applies only to

government agents, not private actors. 256 U.S. 465, 41 S. Ct.

574, 65 L. Ed. 1048 (1921). In Burdeau, a private detective

seized incriminating items from the defendant’s office, and the

items were ultimately turned over to the Department of Justice.

Id. at 473-74, 41 S. Ct. at 575, 65 L. Ed. at 1050. Because no

government official had “anything to do with the wrongful

15

seizure,” the Court found no Fourth Amendment violation. Id. at

475, 41 S. Ct. at 576, 65 L. Ed. at 1051.

The Supreme Court reaffirmed that principle in Walter v.

United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410

(1980). In that case, sealed packages of films were mistakenly

delivered to a third party, who unwrapped and examined them and

then called the Federal Bureau of Investigation. Id. at 651-52,

100 S. Ct. at 2399, 65 L. Ed. 2d at 414-15. An agent picked up

the packages, which contained hundreds of boxes of films and

“explicit descriptions of the contents.” Ibid.

The government ultimately pursued obscenity-related

charges, and the defendants moved to suppress. Id. at 652, 100

S. Ct. at 2399, 65 L. Ed. 2d at 415. The Court held that the

government could search the films “to the extent that they had

already been examined by third parties”; but the agents needed a

warrant to screen the films, which went beyond the scope of the

private search. Id. at 656, 658-59, 100 S. Ct. at 2401-03, 65

L. Ed. 2d at 417-19.

In Jacobsen, supra, the Court applied those principles in a

related context. Employees of a private carrier examined a

package that had been damaged in transit by a forklift. 466

U.S. at 111, 104 S. Ct. at 1655, 80 L. Ed. 2d at 92. Pursuant

to company policy, they opened the package to inspect its

contents in case of an insurance claim. Ibid. The package, an

16

ordinary cardboard box with crumpled newspaper packed on top,

contained a silver tube that the employees cut open; inside it,

they found four plastic bags, one within the next. Id. at 111,

104 S. Ct. at 1655, 80 L. Ed. 2d at 93. In the innermost bag,

the employees found white powder. Ibid. They notified the Drug

Enforcement Administration, placed the bags back in the tube,

and put the tube and newspapers back into the box. Ibid.

An agent arrived and removed the plastic bags from the

tube. Ibid. He opened each one, field tested the contents, and

confirmed that the powder was cocaine. Id. at 111-12, 104 S.

Ct. at 1655, 80 L. Ed. 2d at 93. The defendants later

challenged the search.

The Court noted that the initial search by company

employees did not violate the Fourth Amendment because of its

“private character.” Id. at 115, 104 S. Ct. at 1657, 80 L. Ed.

2d at 95. The Court next examined the government agent’s

actions to decide whether “they exceeded the scope of the

private search.” Ibid. The Court concluded that the agent’s

removal of the bags and visual inspection of their contents did

not infringe any legitimate privacy rights because the acts

“enabled the agent to learn nothing that had not previously been

learned during the private search.” Id. at 120, 104 S. Ct. at

1660, 80 L. Ed. 2d at 98. The Court also found that the field

test “merely disclose[d]” whether the powder was cocaine and

17

thus did not “compromise any legitimate interest in privacy.”

Id. at 123, 104 S. Ct. at 1661, 80 L. Ed. 2d at 100. “In sum,”

the Jacobsen Court held, “the federal agents did not infringe

any constitutionally protected privacy interest that had not

already been frustrated as the result of private conduct.” Id.

at 126, 104 S. Ct. at 1663, 80 L. Ed. 2d at 102.

C.

The Appellate Division and this Court considered the third-

party intervention doctrine in State v. Saez, 268 N.J. Super.

250 (App. Div. 1993), rev’d on dissent, 139 N.J. 279 (1995).

In Saez, an informant told police that she saw “narcotic

activity” in the basement of a neighboring apartment. Saez,

supra, 268 N.J. Super. at 256. She was able to see through gaps

in a wood partition that separated the two basements. Id. at

256-57. The informant allowed an officer to set up surveillance

from her basement, and he surveilled the apartment for an

extended period. Id. at 257. The officer looked through the

holes in the wooden wall and held a mirror over his head to see

through a gap in the wall above a furnace. Id. at 257-58.

Almost at once, he saw three males make crack cocaine; over

time, he observed additional activity that led to the

defendants’ arrests. Id. at 258-59.

Both the majority and dissent relied on Jacobsen. The

majority did not find the officer’s conduct amounted to an

18

unreasonable search because “[h]is observations went no further

than . . . the informant’s.” Id. at 264. Judge D’Annunzio, in

dissent, disagreed. He explained that when “the government

expands the private search, the third-party intervention

exception no longer applies to the fruits of the expanded

search.” Id. at 271 (D’Annunzio, J.A.D., dissenting). The

dissent also stressed that “the police were not invited to view

specific, immutable objects” in the possession of the informant.

Id. at 272 (D’Annunzio, J.A.D., dissenting). Instead,

“[b]ecause no one could predict with certainty what the police

would see, unlike the Jacobsen line of cases, each moment of

surveillance was a new invasion of privacy.” Id. at 273

(D’Annunzio, J.A.D., dissenting).

In a brief per curiam decision, the Court reversed

substantially for the reasons in Judge D’Annunzio’s dissent.

Saez, supra, 139 N.J. at 280. As the Court explained, “we are

generally in accord with the dissenting opinion’s analysis that

described the extended and continuous police surveillance as a

significant expansion of the informant’s prior observation of

the activities conducted in the adjacent basement.” Id. at 281.

The Court did not address whether the third-party intervention

doctrine was limited to cases in which an informant gave law

enforcement an item to inspect. Id. at 280.

19

Consistent with Jacobsen, the Appellate Division in State

v. Premone, 348 N.J. Super. 505, 513-14 (App. Div. 2002), found

that the third-party intervention doctrine did not apply because

the police exceeded the scope of a private search. In that

case, the owner of a motel gave the police a patron’s zippered

bag; the police opened it and examined its contents without

first getting a warrant. Id. at 509.

D.

Neither the United States Supreme Court nor this Court has

applied the third-party intervention or private search doctrine

to the search of a private home. To be sure, that would

represent a significant expansion of the doctrine. Police would

no longer simply be asked to view a discrete set of items turned

over to them. Instead, they would walk through a private

residence and observe far more.

Courts around the country have wrestled with this question.

Some have expressly declined to expand the doctrine to private

dwellings. The Sixth Circuit, for example, has refused to

extend the private search doctrine “to cases involving private

searches of residences.” United States v. Allen, 106 F.3d 695,

699 (6th Cir.), cert. denied, 520 U.S. 1281, 117 S. Ct. 2467,

138 L. Ed. 2d 223 (1997).

In Allen, a motel manager entered a customer’s room, saw

marijuana inside, and called the police who initially entered

20

the room without a warrant. Id. at 697. The government relied

on Jacobsen, in part, to justify the warrantless search. In

response, the court noted that the defendant “had a legitimate

and significant privacy interest in the contents of his motel

room, and this privacy interest was not breached in its entirety

merely because the motel manager viewed some of those contents.”

Id. at 699. The court distinguished Jacobsen, “which measured

the scope of a private search of a mail package, the entire

contents of which were obvious.” Ibid. In plain language, the

court explained that it was “unwilling to extend the holding in

Jacobsen” to a search of a private dwelling. Ibid.

The Sixth Circuit reaffirmed that holding in United States

v. Williams, 354 F.3d 497, 510 (6th Cir. 2003). Williams

involved facts similar to the case on appeal: a landlord

concerned about a water leak entered a rental unit and “became

suspicious of criminal activity.” Id. at 499. Her niece called

the authorities, who walked through the property with the women

and found marijuana. Id. at 499-501. Once again, the Sixth

Circuit noted the “real distinction between a federal express

package and a home, which is entitled to significantly more

protection,” and declined to extend Jacobsen to the warrantless

search of a private home. Id. at 510.

The Ninth Circuit expressly agreed with the reasoning in

Allen in United States v. Young, 573 F.3d 711, 721 (9th Cir.

21

2009). In Young, hotel staff searched a guest’s room, found a

firearm, and called the police. Id. at 713. Without first

getting a warrant, an officer entered the room with a staff

member who showed him the gun. Ibid. The government again

relied on Jacobsen. Id. at 720. The Ninth Circuit, in turn,

observed that the language in Jacobsen “suggests a very

restricted application of the holding” in the case. Ibid. The

court added that “there are no facts presented here that

persuade us to expand Jacobsen’s decision to warrantless

searches of private residences.” Ibid.

A number of state courts have likewise refused to extend

the private search doctrine to a home. The Supreme Court of

Colorado, in People v. Brewer, 690 P.2d 860 (Colo. 1984),

concluded that police could not enter a rented home without a

warrant, at a landlord’s invitation, to see marijuana that the

landlord had already found. The court noted that Jacobsen could

not support such a warrantless search: “[t]he decision . . .

was based in part on the minimal intrusion involved in the

governmental search of an unwrapped package, and has never been

used to justify an invasion of privacy as substantial as entry

into a house.” Id. at 863 n.3.

The Idaho Supreme Court reached the same conclusion in

State v. Johnson, 716 P.2d 1288 (Idaho 1986). The Court held

that Jacobsen did not support an officer’s warrantless entry

22

into a rented apartment, at the landlord’s invitation, to

observe “suspicious plants.” Id. at 1290, 1292 & n.2. As the

court explained,

[i]f the state were to have its way on this

point, it would apparently argue that the

following scenario is outside constitutional

protection: A private citizen ransacks a

home, claiming to be in search of contraband.

Upon discovering the alleged contraband, the

citizen calls in the police who conduct a

second ransacking of the home, looking and

searching everywhere and inspecting

everything as did the citizen. According to

the state, because the officer is only

“viewing” the citizen’s efforts -- “merely”

retracing the citizen’s footsteps -- such

government activity is outside the purview of

federal and state constitutional protections.

Such an aberrational view is not harmonious

with what the framers of our federal and state

constitutions intended when they put these

protections into our constitutions, and we so

hold.

[Id. at 1293.]

See also State v. Barkmeyer, 949 A.2d 984, 996 (R.I.) (noting

that officer’s warrantless entry into home and seizure of

evidence, at invitation of private actor who had already found

evidence, “requires analysis beyond the law of private search”),

cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729

(2008); State v. Miggler, 419 N.W.2d 81, 84 (Minn. Ct. App.

1988) (distinguishing Jacobsen because search had been conducted

in defendant’s home and had exceeded scope of private search,

among other reasons). The Supreme Court of Washington has also

23

found that the private search doctrine is contrary to the

Washington Constitution. State v. Eisfeldt, 185 P.3d 580, 584-

86 (Wash. 2008).

Other courts have permitted warrantless searches of a

private home that did not exceed the scope of an earlier private

search. The Fifth Circuit considered events similar to this

case in United States v. Bomengo, 580 F.2d 173 (5th Cir. 1978),

cert. denied, 439 U.S. 1117, 99 S. Ct. 1022, 59 L. Ed. 2d 75

(1979), a case that preceded Jacobsen. In Bomengo, an engineer

of an apartment complex noticed water leaking from outside the

defendant’s apartment. Id. at 174-75. Someone tried to find

the apartment’s occupants but did not succeed. Id. at 175. The

engineer and a security officer for the complex then entered the

apartment to fix the leak and assess the damage. Id. at 175.

While inside, they saw two handguns with attached silencers and

called the police. Ibid. A police officer entered the

apartment, saw the silencers, and left to obtain a search

warrant. Ibid. The court upheld the officer’s actions because

they were “confined strictly to the scope of the initial

discovery.” Id. at 176.

The Fifth Circuit refined its analysis after Jacobsen. It

declined to extend the private search doctrine in wholesale

fashion to searches of private dwellings. See United States v.

Paige, 136 F.3d 1012, 1020 n.11 (5th Cir. 1998). Instead, the

24

Circuit inquired whether the private party’s intrusion into a

residence “was reasonably foreseeable,” in light of the

“activities of the home’s occupants or the circumstances within

the home at the time of the private search.” Id. at 1020. If

the private intrusion was reasonably foreseeable, the court

explained, “the occupant will no longer possess a reasonable

expectation of privacy in the area or thing searched, and the

subsequent police search will not trigger the Fourth Amendment.”

Ibid.; see also United States v. Oliver, 630 F.3d 397, 406-07

(5th Cir.), cert. denied, ___ U.S. ___, 132 S. Ct. 758, 181 L.

Ed. 2d 490 (2011) (same).

The Fifth Circuit found no Fourth Amendment violation when

it applied the test to the facts before it in Paige, supra. 136

F.3d at 1021. The defendant had hired roofers to repair his

roof and had advised them that they could go into the garage if

they needed tools or supplies. Ibid. When the workers

accidentally damaged the side of the home, it was thus

“reasonably foreseeable” for them to look in the garage for

replacement materials. Ibid. Once inside, they saw marijuana.

Ibid. Under the circumstances, the circuit court concluded that

a follow-up examination by an officer called to the scene did

not run afoul of the Fourth Amendment. Ibid.

The Eighth Circuit considered Paige’s reasonable

foreseeability test and “neither adopt[ed] nor reject[ed]” it.

25

See United States v. Miller, 152 F.3d 813, 816 (8th Cir. 1998).

The Miller court found that a police search of a patient’s room

in a treatment facility, which followed a private search, passed

muster under both Jacobsen and Paige. Ibid. The court noted

that the police search did not exceed the scope of the private

search and that the private party’s intrusion was reasonably

foreseeable. Ibid.1

E.

We add briefly that apartment dwellers do not cede their

rights under the Fourth Amendment or the State Constitution to

their landlord. A landlord typically has the right to access a

tenant’s apartment under certain circumstances -- for example,

to make repairs and conduct inspections -- provided the landlord

gives reasonable notice. See, e.g., N.J.A.C. 5:10-5.1(c).

Immediate access “shall be given” “in case of safety or

structural emergencies.” Ibid. In general, though, a landlord

does not have the authority to consent to a search of a tenant’s

private living space. Chapman v. United States, 365 U.S. 610,

1 We do not consider certain other cases the parties discuss, in

which a private actor handed items over to the police after a

private search, see, e.g., State v. Moffett, 885 F. Supp. 237,

239 (N.D. Ala. 1995), aff’d, 89 F.3d 855 (11th Cir. 1996), or

the police obtained a warrant before searching, see, e.g., State

v. Krajeski, 16 P.3d 69, 71 (Wash. Ct. App.), pet. for review

denied, 29 P.3d 718 (Wash. 2001).

26

81 S. Ct. 776, 5 L. Ed. 2d 828 (1961); State v. Coyle, 119 N.J.

194, 215-16 (1990).

IV.

We have serious reservations about extending the private

search doctrine to the home. The United States Supreme Court

has never applied the doctrine in that setting, and we do not

glean from recent decisions that it would allow such an

extension. See, e.g., Jardines, supra, ___ U.S. ___, 133 S. Ct.

1409, 185 L. Ed. 2d 495 (emphasizing heightened protection

accorded to private home and immediate area surrounding it); see

also 1 Wayne LaFave, Search and Seizure, § 1.8(b), at 387 (5th

ed. 2012) (“[I]t is to be doubted that if a private person

searched the premises of another and then reported to police

what he had found (instead of removing the evidence and handing

it over to the police), that the police could then make a

warrantless entry of those premises and seize the named evidence

. . . .”).

Relying on the protections in the State Constitution, we

conclude that the private search doctrine cannot apply to

private dwellings. Absent exigency or some other exception to

the warrant requirement, the police must get a warrant to enter

a private home and conduct a search, even if a private actor has

already searched the area and notified law enforcement.

27

To be sure, whenever residents invite someone into their

home, they run the risk that the third party will reveal what

they have seen to others. See Jacobsen, supra, 466 U.S. at 117,

S. Ct. at 1658, 80 L. Ed. 2d at 96. A landlord, like any other

guest, may tell the police about contraband he or she has

observed. And the police, in turn, can use that information to

apply for a search warrant. Ibid. But that course of events

does not create an exception to the warrant requirement.

To hold otherwise would result in a sizeable exception to

the warrant requirement and expand the private search doctrine

beyond the minimal intrusion it originally sanctioned. It would

also ignore the special status of the home under federal and

state constitutional law and allow a more substantial invasion

of privacy. In short, a private home is not like a package in

transit.

We recognize that residents have a reduced expectation of

privacy in their home whenever a landlord or guest enters the

premises. But residents do not thereby forfeit an expectation

of privacy as to the police. In other words, an invitation to a

plumber, a dinner guest, or a landlord does not open the door to

one’s home to a warrantless search by a police officer.2

2 In a different context, the Court has found that people retain

a reasonable expectation of privacy in certain information they

reveal to third-party providers. See Earls, supra, 214 N.J. at

28

The State, though, argues that in a case like this, the

police are merely conducting a “confirmatory” search when they

repeat the same search a private party has already conducted.

But police officers can see and learn far more when they walk

through a private home than when they inspect a discrete item

delivered by a private party. Here, the police saw details of

the interior of a person’s residence -- an area normally free

from the government’s view. See Kyllo v. United States, 533

U.S. 27, 37, 121 S. Ct. 2038, 2045, 150 L. Ed. 2d 94, 104 (2001)

(“In the home, our cases show, all details are intimate details,

because the entire area is held safe from prying government

eyes.”). The police also spotted a scale that the landlord had

not told them about. Cf. Jacobsen, supra, 466 U.S. at 120, 104

S. Ct. at 1660, 80 L. Ed. 2d at 98 (“[T]he agent . . . learn[ed]

nothing that had not previously been learned during the private

search.”). The search, thus, went beyond simply confirming what

the landlord had seen.

The State cannot rely on the plain view doctrine to justify

the seizure of the scale. Under that doctrine, the State would

have to show that the officer was “lawfully in the viewing

588 (cell phone location information); State v. Reid, 194 N.J.

386, 389 (2008) (Internet subscriber information); State v.

McAllister, 184 N.J. 17, 19 (2005) (bank records); State v.

Mollica, 114 N.J. 329, 344-45 (1989) (hotel-room telephone toll

billing records); State v. Hunt, 91 N.J. 338, 345 (1982)

(telephone toll billing records).

29

area.” Bruzzese, supra, 94 N.J. at 236. That depends on

whether the officer’s initial entry into the home was

permissible. Kentucky v. King, ___ U.S. ___, ___, 131 S. Ct.

1849, 1858, 179 L. Ed. 2d 865, 876 (2011) (citing Horton v.

California, 496 U.S. 128, 136-40, 110 S. Ct. 2301, 2308-10, 110

L. Ed. 2d 112, 123-25 (1990)). Without a warrant, the State

cannot make that showing or rely on plain view.

The proper course under the State and Federal Constitutions

is the simplest and most direct one. If private parties tell

the police about unlawful activities inside a person’s home, the

police can use that information to establish probable cause and

seek a search warrant. In the time it takes to get the warrant,

police officers can secure the apartment or home from the

outside, for a reasonable period of time, if reasonably

necessary to avoid any tampering with or destruction of

evidence. Illinois v. McArthur, 531 U.S. 326, 334, 121 S. Ct.

946, 951-52, 148 L. Ed. 2d 838, 849 (2001). But law enforcement

cannot accept a landlord’s invitation to enter a home without a

warrant unless an exception to the warrant requirement applies.

V.

For the reasons discussed above, the third-party

intervention or private search doctrine does not exempt law

enforcement’s initial search of defendant’s home from the

warrant requirement. To offer guidance for the future, we

30

repeat that if a landlord relays that he has seen drugs or

contraband in an apartment, as happened here, the police can use

that information to obtain a search warrant and then conduct a

search. If there are exigent circumstances, a warrant is not

required. Earls, supra, 214 N.J. at 569.

The State has not argued exigent circumstances here. No

one was in the apartment, and the officer on the scene conceded

that it was not urgent to search right away. He admitted that

there was time to secure the house and seek a warrant.

The trial court found that, after Officer Christie’s

warrantless entry into the dwelling, co-defendant James validly

consented to a full search of the apartment. The later, second

search led to the discovery of a loaded handgun, ammunition,

materials used to cut and package cocaine, and other items.

We limited the grant of certification in this case to

whether the third-party intervention doctrine applies to a

warrantless search of a home. 217 N.J. 283. We therefore

remand this case to the trial court to evaluate whether the

initial unlawful search tainted the later consensual search.

See Wong Sun v. United States, 371 U.S. 471, 485, 84 S. Ct. 407,

416, 9 L. Ed. 2d 441, 454 (1963).

Nothing in this opinion is intended to cast doubt on the

private search or third-party intervention doctrine in its

original form. When the police reexamine property that has been

31

searched by a private actor and presented to law enforcement in

a non-residential context, neither the Fourth Amendment nor the

State Constitution requires a warrant. See Jacobsen, supra, 466

U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85; Burdeau, supra, 256

U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048.

VI.

For the reasons stated above, the judgment of the Appellate

Division is reversed. The matter is remanded to the trial court

for further proceedings consistent with this opinion.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and

SOLOMON join in CHIEF JUSTICE RABNER’s opinion. JUDGE CUFF

(temporarily assigned) did not participate.

32

SUPREME COURT OF NEW JERSEY

NO. A-64 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY WRIGHT,

Defendant-Appellant.

DECIDED May 19, 2015

Chief Justice Rabner PRESIDING

OPINION BY Chief Justice Rabner

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

REVERSE AND

CHECKLIST

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

TOTALS 6