The opinion
NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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
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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
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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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