NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1028-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMIR RANDOLPH,

Defendant-Appellant.

_____________________________________

Submitted February 25, 2015 – Decided

Before Judges Ashrafi, Kennedy and O'Connor.

On appeal from the Superior Court of New 

Jersey, Law Division, Hudson County, 

Indictment No. 12-02-0279.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Emily A. Kline, Designated 

Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County 

Prosecutor, attorney for respondent 

(Gioiella A. Mayer, Special Deputy Attorney 

General/Acting Assistant Prosecutor, on the 

brief).

The opinion of the court was delivered by 

KENNEDY, J.A.D.

Following a jury trial, defendant was found guilty of 

various controlled dangerous substance (CDS) offenses and was 

sentenced in the aggregate to seven years of imprisonment, 

August 7, 2015

APPROVED FOR PUBLICATION

August 7, 2015

APPELLATE DIVISION
2 A-1028-13T2

subject to three years of parole ineligibility. Defendant 

appeals and raises the following arguments:

POINT I: THE TRIAL COURT ERRED IN FAILING 

TO GRANT DEFENDANT'S MOTION TO SUPPRESS 

WHERE THE EVIDENCE SEIZED WAS IN VIOLATION 

OF DEFENDANT'S FOURTH AMENDMENT RIGHT.

POINT II: THE COURT COMMITTED PLAIN ERROR BY 

CHARGING THE JURY ON FLIGHT. 

POINT III: THE COURT ERRED IN FAILING TO 

GIVE A REQUESTED INSTRUCTION ON "MERE 

PRESENCE" AS AN ESSENTIAL PART OF THE 

DEFINITION OF CONSTRUCTIVE POSSESSION.

POINT IV: THE SENTENCE WAS EXCESSIVE BECAUSE

THE TRIAL JUDGE FAILED TO CONSIDER 

APPLICABLE MITIGATING FACTORS. 

We have considered these arguments in light of the record and 

applicable law, and for reasons expressed hereinafter, we 

reverse defendant's conviction and we remand for a new trial.

I.

We initially address the Law Division's denial of 

defendant's motion to suppress evidence. We discern the facts 

that follow from the record developed at the suppression 

hearing.1

 

1 "'[O]n appeal, we may only consider whether the motion to 

suppress was properly decided based on the evidence presented at 

that time.'" State v. Robinson, 200 N.J. 1, 15 (2009) (citation 

(continued)
3 A-1028-13T2

On September 19, 2011, at about 10:00 a.m., Jersey City

Detective Anthony Goodman was conducting a surveillance of the 

area at Grant Avenue and Martin Luther King Drive in Jersey City 

– a known high crime area. From his unmarked patrol car,

Goodman observed a group of men standing on the sidewalk in 

front of a three-story apartment building on Grant Avenue (the 

building). As the group dispersed, one individual, later 

identified as co-defendant, Markees King, entered the building. 

Approximately fifteen minutes later, Goodman saw an older man,

later identified as co-defendant, Edward Wright, standing across 

the street from the building who appeared to be watching one of 

the upper level windows. Goodman noticed King watching the 

street from a window on the building's second floor.

Shortly thereafter, King exited the front entrance of the 

building, met briefly with Wright, and engaged in what Goodman 

believed to be a narcotics transaction. Goodman continued 

watching as King participated in another hand-to-hand

transaction with another individual. King then went back into 

the building.

 

(continued)

omitted); see also State v. Tavares, 364 N.J. Super. 496, 501-02 

(App. Div. 2003) (on appeal from a judge's decision regarding 

the justification of a warrantless search, parties generally 

cannot rely on factual testimony or other proof not submitted as 

part of the record at the suppression hearing).
4 A-1028-13T2

Goodman alerted perimeter police units that he "had a 

sale" and provided a description of Wright. Sergeant Stephen 

Trowbridge was with a perimeter unit and he stopped Wright a 

short distance from the building. Trowbridge recovered one 

glassine bag containing heroin from Wright's pants pocket and 

placed him under arrest. At this time, Goodman watched King 

leave the building, and he requested his perimeter units to stop 

and arrest him. Officers in the perimeter units quickly stopped 

and arrested King as he walked toward Martin Luther King Drive. 

A search of King revealed a small amount of marijuana and $132 

in small denominations. 

Following the arrests of Wright and King, Trowbridge

decided to "close in," and began moving from his perimeter

location toward the building. However, before Trowbridge got to 

the front door, a man later identified as Andrew Bentley left

the building and began walking toward the vehicle from which 

Goodman was conducting his surveillance. Goodman testified that 

Bentley was using a cell phone and he heard Bentley state, "They 

are at the front door. They’re coming in."

Having arrived at the building's locked front door,

Trowbridge knocked repeatedly on the door and the first floor 

windows, until the first floor tenant opened the door and 

permitted him to enter the building. While in the first floor 
5 A-1028-13T2

vestibule, Trowbridge heard someone "running" from the second to 

the third floor, and saw a barbeque grill situated near the 

staircase. He opened the lid to the grill and found a handgun.

Within a minute, another Jersey City officer arrived in the 

vestibule. Trowbridge gave him the handgun and walked up the 

staircase to the second floor. 

From the hallway in the second floor, Trowbridge observed 

one of the doors to the second floor apartment was open.

Peering into the apartment from the hallway, Trowbridge could 

see "debris thrown about" inside, a couch, and nothing else. He

concluded that the apartment was "vacant" or "abandoned," and 

entered to see if there were "any additional actors in there."

The apartment door opened directly into the living room. 

Trowbridge walked through the apartment from the back to the 

front and found no one inside. During this walk-through, he 

observed in various rooms of the apartment, an open backpack and 

a pair of shoes near the front door, clothing draped over the 

couch, a television, and a gaming console. Trowbridge also saw 

marijuana, empty glassine bags and a small amount of cash on the 

floor next to the gaming console. Before leaving the apartment, 

Trowbridge found a silver box containing glassine envelopes of 

heroin and a Newport cigarette box containing additional amounts 

of marijuana.
6 A-1028-13T2

A few pieces of mail were also on the floor near the gaming 

console, one of which was addressed to defendant, Amir Randolph,

on Mallory Avenue in Jersey City. At this point, Trowbridge 

left the apartment and walked downstairs where he encountered

members of the U.S. Marshals Fugitive Task Force, who, 

unbeknownst to the Jersey City police officers, were also 

watching the building at the time.

 The federal agents advised Trowbridge they had a warrant 

for defendant’s arrest for an alleged homicide, and believed he 

either resided there or was staying at the building. The 

federal agents then proceeded directly to the third floor 

apartment where defendant was found hiding in a closet. A woman 

and young child also occupied the third floor apartment. No one 

from the Narcotics Unit was present when defendant was arrested, 

and the Marshals subsequently took defendant into custody.

Bentley was also taken into custody by federal agents. 

Following the State's presentation at the suppression

hearing, at which only Trowbridge and Goodman testified, the 

judge denied an application by defendant to call Jersey City

Detective Matthew Stambuli. Defense counsel indicated that 

Stambuli had "investigated" Bentley's cellphone and would 

testify it was "inoperable." The State opposed the motion, 

arguing that the defense had indicated it would offer no 
7 A-1028-13T2

witnesses, and proffered that cellphone records showed the phone 

was "on and working" on September 19, and had first been 

cancelled on September 25. The judge then denied defendant's 

application and explained that there was "no testimony 

indicating that that phone call was actually made . . ." and 

that "it's irrelevant to what the police officers did at the 

time."

The judge denied the motion to suppress and explained, in 

part, that:

The door to the second floor apartment was 

open, and from his vantage point, Sergeant 

Trowbridge observed that the apartment was 

vacant. 

Sergeant Trowbridge entered the apartment to 

search for additional actors. He observed 

drugs, debris and paperwork scattered on the 

floor of the apartment. Finding no actors, 

he chose to return to the first floor where 

he met with U.S. Marshals who informed 

Sergeant Trowbridge that they had been 

investigating the premises as the residence 

of Mr. Randolph.

. . . .

In regards to the search of [the apartment], 

none of the defendants have provided any 

evidence that they had an expectancy of 

privacy in the first floor hallway where the 

gun was recovered, in the second floor 

vacant apartment where narcotics, narcotic 

paraphernalia and paperwork was recovered, 

or in the third floor apartment where Mr. 

Randolph was arrested.

 
8 A-1028-13T2

As an overall rule, social and legal norms 

dictate whether . . . an expectation of 

privacy will be held to exist and/or be 

reasonable in particular factual 

circumstances.

. . . .

Absent any evidence, this Court does not 

find an expectation of privacy, and as such, 

the search of [the apartment] is valid. See 

State versus Linton, 356 New Jersey Super. 

at 255, at page 256, Appellate Division 

2002, holding a defendant who hid his drugs 

in someone else's vacant property had no 

reasonable expectation of privacy.

The judge then entered an order denying the motion for 

suppression.

On appeal, defendant relies upon State v. Brown, 216 N.J.

508 (2014), and argues that the Law Division erred in concluding 

that defendant had no reasonable expectation of privacy in 

"someone else's vacant apartment" and that, in making such a 

finding, the judge improperly imposed a burden of proof upon 

defendant. The State argues that defendant has no standing to 

object to the search because police had an "objectively 

reasonable belief" that the apartment was abandoned, and that, 

even if the judge's legal conclusions were flawed, the 

warrantless search was nonetheless valid because "exigent 

circumstances . . . required immediate police action." In 

making the latter argument, the State relies, in part, on the 

alleged fact that "Bentley called [defendant]" to advise police 
9 A-1028-13T2

were entering the building as Trowbridge had gained access to 

the first floor hallway.

Under the Fourth Amendment of the United States 

Constitution and Article I, Paragraph 7 of the New Jersey 

Constitution, "[a] warrantless search is presumed invalid unless 

it falls within one of the recognized exceptions to the warrant 

requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing 

State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of 

the warrantless seizure of a person or property. Terry v. Ohio, 

392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 

904-06 (1968) (seizure of a person); State v. Hempele, 120 N.J.

182, 216-17 (1990) (seizure of property). It is the burden of 

the State to show by a preponderance of the evidence that the 

search falls within a recognized exception to the warrant 

requirement and that the search was permissible. Brown, supra, 

216 N.J. at 527.

In the case before us, it appears that the Law Division 

concluded the apartment on the second floor was vacant or 

abandoned and that, consequently, defendant had no reasonable

expectation of privacy therein. In reaching this conclusion, 

the judge apparently found that defendant had a burden of proof 

to show he had a reasonable expectation of privacy in the 
10 A-1028-13T2

premises. In reaching these conclusions, the Law Division 

erred.

In New Jersey, "a criminal defendant [has standing] to 

bring a motion to suppress evidence obtained in an unlawful 

search and seizure if he has a proprietary, possessory or 

participatory interest in either the place searched or the 

property seized." Alston, supra, 88 N.J. at 228; accord Brown,

supra, 216 N.J. at 528-29. "[S]tanding to seek suppression of 

evidence" is a "separate issue" from "the existence of a 

reasonable expectation of privacy," which pertains to the merits 

of the police action. State v. Hinton, 216 N.J. 211, 235

(2013). Defendant's automatic standing to contest the 

constitutional validity of the seizure "does not equate to a 

finding that he . . . has a substantive right of privacy in the 

place searched that mandates the grant of that motion." Ibid. 

"'[A]lthough we do not use a reasonable expectation of privacy 

analysis for standing purposes in criminal cases, we do apply 

that analysis to determine whether a person has a substantive 

right of privacy in a place searched or an item seized.'" Ibid.

(quoting State v. Johnson, 193 N.J. 528, 547 (2008)). "[T]he 

objective reasonableness of the defendant's expectation of 

privacy in that property, for purposes of Article I, Paragraph 
11 A-1028-13T2

7, turns in large part on his or her legal right to occupy the 

property at issue." Id. at 236.

A defendant cannot successfully "challenge a search if an 

officer had an objectively reasonable basis to believe he was a 

trespasser." Brown, supra, 216 N.J. at 535. "That follows 

because a trespasser, by definition, does not have a possessory 

or proprietary interest in property where he does not belong —

where he does not have permission or consent to be." Ibid.

Thus, "a trespasser who hides drugs in someone else's vacant and 

unsecured property" does not have a "'constitutionallyreasonable expectation of privacy'" in that vacant property.

Id. at 537 (quoting State v. Linton, 356 N.J. Super. 255, 259

(App. Div. 2002)).

In State v. Smith, 291 N.J. Super. 245, 250-52 (App. Div. 

1996), rev'd on other grounds, 155 N.J. 83, 102, cert. denied, 

525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998), for 

example, the defendant was storing drugs in an apartment without 

the permission of the tenant, who was in the hospital. We held 

that because the "defendant had no right to enter the 

apartment," the "defendant lacked a sufficient privacy interest 

in the apartment to support the conclusion that the search 

violated his constitutional rights." Id. at 261.
12 A-1028-13T2

"Establishing an abandonment of real property is 'a 

difficult standard to meet.'" Brown, supra, 216 N.J. at 530 

(quoting United States v. Harrison, 689 F.3d 301, 309 (3d Cir. 

2012)). "'Before the government may cross the threshold of a 

home without a warrant, there must be clear, unequivocal and 

unmistakable evidence that the property has been abandoned.'"

Id. at 530-31 (internal citations omitted). The test is one of 

objective reasonableness, State v. Edmonds, 211 N.J. 117, 132 

(2012), and turns on whether, given the totality of the 

circumstances, an objectively reasonable police officer would 

believe the property is abandoned. Harrison, supra, 689 F.3d at

308. Because the officer’s subjective beliefs are irrelevant to 

this inquiry, a police officer’s sincere, good-faith but 

unreasonable belief that real property is abandoned will not 

justify a warrantless search when a defendant has an apparent 

possessory interest in that property. Brown, supra, 216 N.J. at 

531. 

In Brown, the Supreme Court identified a number of factors 

to be considered in determining whether a police officer has an 

objectively reasonable basis to believe a property is abandoned: 

In deciding whether a building is abandoned, 

or a person is a trespasser, one reasonable 

step an officer might take is to examine 

readily available records on ownership of 

property. Deeds are kept in the county 

recording office and provide the address of 
13 A-1028-13T2

the property owner. See 13A New Jersey 

Practice, Real Estate Law and Practice §

33.2 at 502, § 33.10(4) at 508 (John A. 

Celentano, Jr. (2d ed. 2002).

. . . .

Moreover, utility records, which can be 

secured by a grand jury subpoena, will 

reveal not only the name of the property 

owner, but also whether electricity has been 

used in the premises. Such record checks 

are not the exclusive means of determining 

whether property is abandoned, but just one 

factor in assessing whether a police officer 

acted in an objectively reasonable manner. 

Other factors to consider in assessing 

whether a building is abandoned is the 

property’s condition and whether the 

putative owner or lessee has taken measures 

to secure the building from intruders. 

There are impoverished citizens who live in 

squalor and dilapidated housing, with 

interiors in disarray and in deplorable 

condition, and yet these residences are 

their homes. As succinctly stated, there is 

not a "'trashy house exception' to the 

warrant requirement." Harrison, supra, 689 

F.3d at 311. Yet, a police officer may be 

familiar with an unoccupied building with 

missing doors and broken windows, and an 

interior in utter shambles and lacking 

electricity, and reasonably conclude that 

the structure is abandoned. The decrepit 

condition of the exterior and interior of a 

building is a factor, but other 

circumstances will necessarily come into 

play. For example the boarding of windows 

and bolting of doors of a shabby-looking 

building will suggest an intent to keep 

people out by a person exercising control 

over the property and therefore may be 

evidence that conflicts with abandonment. 

. . . .
14 A-1028-13T2

A Home is not deemed 'abandoned' merely 

because a person is dealing drugs from it. 

Id. at 533-34. 

Finally, the legitimacy of a search will not depend on what was 

learned by the police after entry into the home. Wong Sun v. 

United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415, 9 L. Ed.

2d 441, 453 (1963)("A search unlawful at its inception may [not] 

be validated by what it turns up.").

The State relies on Linton, supra, 356 N.J. Super. 255, to 

validate the reasonableness of Trowbridge's belief that the 

apartment was abandoned. In Linton, two police officers were 

informed that a man was selling drugs from a certain address in 

the municipality. Id. at 257. Upon arriving at that address, 

the officers observed garbage in the front and back yards, a 

broken lock on the front door, a broken front window, a living 

room littered with garbage and damaged furniture, and no lights 

on in the residence. Ibid. Additionally, the officers had not 

seen anyone at the residence for a month despite frequently 

patrolling the area. Ibid. We reversed the trial court's 

suppression of drugs that the officers had found hidden in a 

torn couch, concluding that there was no Fourth Amendment 

violation because "a defendant who hides drugs in someone else's 
15 A-1028-13T2

vacant property has no constitutionally-reasonable expectation 

of privacy." Id. at 259. 

Linton is not persuasive here. First, in the case before 

us, the State offered only a few, equivocal observations about 

the condition of the apartment. Trowbridge merely saw a couch 

and what he characterized as "debris" on the floor, when he 

peered into the open door. The windows in the apartment were 

intact; one needed a key to enter the locked building; King 

apparently had a key to get into the locked building; other 

tenants lived in the building, one of whom permitted Trowbridge 

to enter; and the door to the apartment itself did not appear to 

have been forced open. In Linton, by contrast, the police 

offered much more detail respecting the property at issue. 

Second, in Brown, supra, the Supreme Court opined that 

"whether the evidence of abandonment in Linton meets our current 

Article I, Paragraph 7 jurisprudence is certainly debatable." 

216 N.J. at 538. In Brown, the Supreme Court affirmed our 

decision upholding the trial court's order suppressing evidence, 

concluding that the following facts did not objectively support 

the conclusion that a property was abandoned: one of two front 

windows to the residence was broken; the front door had a 

padlock; the rear door was off the hinges and propped closed;

trash bags filled with old clothes and soda cans littered the 
16 A-1028-13T2

living room; and the electric meter was missing. Unlike the 

neighboring houses, the residence in question was not boarded 

up. Id. at 523. The Supreme Court explained also that nothing 

in the record showed that some basic research into the ownership 

of the property "would have been difficult or unduly 

cumbersome." Id. at 542.2

We conclude that, in the circumstances of this case, the 

fact that the apartment appeared to contain only one couch and 

"debris" was seen on the floor is an insufficient basis on which 

to reasonably conclude that the apartment was vacant, unrented 

or abandoned. The fact that the door to the apartment was left 

open does not warrant a contrary conclusion. The law is clear 

that "[t]he Fourth Amendment does not . . . protect only 

hermetically sealed residences" and the rule prohibiting the 

police from entering a residence to conduct a warrantless search 

applies even if the door to the residence is left open. State 

v. Penalber, 386 N.J. Super. 1, 11-12 (App. Div. 2006) (quoting 

United States v. Oaxaca, 233 F.3d 1154 (9th Cir. 2000)). 

In the circumstances of this case, the State cannot argue 

credibly that defendant had no expectation of privacy in an 

apartment where he was allegedly conducting an illegal drug 

 

2 Goodman testified that while it appeared to him that the 

landlord was not renting the unit at the time, he "didn't speak 

to the landlord to verify that." 
17 A-1028-13T2

distribution operation. In fact, at one point, the judge 

determined that the presence of a letter addressed to defendant 

found inside the apartment was "sufficient evidence" that he 

"occupied the area." Trowbridge testified that he assumed the 

apartment was "not rented out" but conceded no effort had been 

made to ascertain from the landlord or building superintendent 

whether that was so.

Beyond this, the apartment had furniture inside, as well as 

a gaming console, other electronic equipment, clothing, bags, 

Nike sneakers and Timberland boots. This is not consistent with 

an apartment being abandoned or vacant, and, more importantly, 

does not suggest in any manner that the apartment is being 

occupied by a trespasser. Given these proofs, the Law Division 

erred in finding that defendant had no reasonable expectation of 

privacy in the apartment. 

The Law Division compounded its error by requiring 

defendant to meet a burden of proof demonstrating his reasonable 

expectation of privacy. Defendant has no such burden, however. 

"[T]he State bears the burden of proving by a preponderance of 

the evidence" that, "in light of the totality of the 

circumstances, a police officer had an objectively reasonable 

basis to conclude that . . . a defendant was a trespasser before 
18 A-1028-13T2

the officer entered or searched the home." Brown, supra, 218 

N.J. at 529, 535-36.

Now, the State argues that even if the judge's reasoning in 

denying the suppression motion was flawed, we should nonetheless 

uphold the order denying suppression on grounds of exigency or 

protective sweep. While it is true that "we affirm or reverse 

judgments and orders, not reasons[,]" State v. Maples, 346 N.J. 

Super. 408, 417 (App. Div. 2002), we decline to do so on the 

basis of this record, and, given our holding hereinafter 

reversing defendant's judgment of conviction. Instead, we elect 

to vacate the order of suppression and remand the issue to the 

Law Division for further hearing.

3

In part, our decision to order a further hearing on 

suppression is prompted by our conclusion that the Law Division 

erred in refusing to grant defendant's application for leave to 

call Detective Stambuli as a witness with respect to the 

operability of Bentley's cell phone. Indeed, we find it 

 

3 On remand for a rehearing of a pretrial motion to suppress 

physical evidence, the second trial judge is not bound by the 

findings of fact or conclusions of law reached by the trial 

judge in the first instance. State v. Hale, 127 N.J. Super. 407 

(App. Div. 1974)(explaining that "law of the case" doctrine most 

commonly applies to the binding nature of appellate decisions 

upon a trial court on remand for further proceedings). 

Accordingly, on remand, the trial court may conduct an expanded 

hearing to gather additional information relevant to the issue 

of suppression. State v. Henderson, 208 N.J. 208, 300 (2011). 
19 A-1028-13T2

especially ironic that the State now urges us to accept as a 

fact that Bentley called "[defendant] and indicated, 'they're at 

the front door. They are coming in[,]'" when, in fact, the judge 

made no such finding and explicitly found the claim to be 

"irrelevant," partially at the urging of the State.

"Where there is a dispute as to material facts on a motion 

to suppress . . . the trial court should not restrict the State 

or defendant in the presentation of all relevant evidence so 

that, if appellate review is had, the record will be complete, 

and a final adjudication can be made." State v. Hope, 85 N.J. 

Super. 551, 555 (App. Div. 1964); see also State v. Wilson, 178 

N.J. 7, 14 (2003); State v. Gaudiosi, 97 N.J. Super. 565, 568-69 

(App. Div. 1967). 

In this case, the Law Division denied defendants' motion to 

suppress without hearing all of the evidence because the judge 

concluded that potentially key evidence was "irrelevant." 

Indeed, even if such reasoning were correct, the judge should 

not have precipitously aborted the hearing without allowing the 

defense to complete its case. It is not self-evident that the 

telephonic transmission was irrelevant to the suppression of 

evidence discovered in the apartment. Moreover, such evidence 

was at least pertinent to the issue of the credibility of the 

testifying officer. While we express no opinion regarding the 
20 A-1028-13T2

significance of this evidence, the complexities attendant upon 

the issues of exigency and protective sweeps underscore the 

point that the judge should not have undertaken to decide the 

motion to suppress without hearing all the evidence.

Whether there were exigent circumstances sufficient to 

justify a warrantless search or seizure is a "highly factsensitive" inquiry. State v. Alvarez, 238 N.J. Super. 560, 568

(App. Div. 1990)(internal quotes omitted); see also Johnson,

supra, 193 N.J. at 552. The pertinent factors include:

the degree of urgency and the amount of time 

necessary to obtain a warrant; the 

reasonable belief that the evidence was 

about to be lost, destroyed, or removed from 

the scene; the severity or seriousness of 

the offense involved; the possibility that a 

suspect was armed or dangerous; and the 

strength or weakness of the underlying 

probable cause determination.

[State v. Walker, 213 N.J. 281, 292 (2013).]

"[E]xigent circumstances will be present when inaction due to 

the time needed to obtain a warrant will create a substantial 

likelihood that the police or members of the public will be 

exposed to physical danger or that evidence will be destroyed or 

removed from the scene." Johnson, supra, 193 N.J. at 553.

A protective sweep of the home may only occur when:

(1) police officers are lawfully within 

private premises for a legitimate purpose, 

which may include consent to enter; and (2) 

the officers on the scene have a reasonable 
21 A-1028-13T2

articulable suspicion that the area to be 

swept harbors an individual posing a danger. 

Where those substantive conditions are met, 

as a matter of procedure, the sweep will be 

upheld only if (1) it is conducted quickly; 

and (2) it is restricted to places or areas 

where the person posing a danger could hide.

[State v. Davila, 203 N.J. 97, 102 (2010).]

When the sweep is performed in the non-arrest setting, and "not 

due to the execution of an arrest warrant, the legitimacy of the 

police presence must be probed." Id. at 126. It is obvious, 

therefore, that both issues are exquisitely fact-sensitive and 

require the court's most discerning analysis. 

In addition, it is unclear whether the State and the 

defense presented all evidence relevant to the issues of 

exigency and a protective sweep – issues that, in any event, 

were not considered by the Law Division. Therefore, the State 

should be afforded the opportunity to present any additional 

evidence it may have relevant to these issues. Defendant also 

should be afforded the opportunity to present evidence regarding 

the claimed exigency and protective sweep.

Accordingly, the order granting defendants' motion to 

suppress is reversed, and the matter is remanded to the trial 

court for such further hearings it determines, after 

consultation with the parties, are appropriate.
22 A-1028-13T2

II.

We turn now to the trial itself and we address defendant's 

argument that he was denied a fair trial as a consequence of the 

court's charge to the jury on flight, and the court's refusal to 

give a "mere presence" charge.

The trial testimony of Trowbridge and Goodman was, in large 

measure, similar to their testimony at the suppression hearing. 

However, at trial, both testified in greater detail respecting 

the alleged cellphone call made by Bentley. Goodman testified 

that as Trowbridge was knocking on the front door of the 

building, Bentley, who had left the building moments earlier, 

walked near the surveillance vehicle with a cellphone held to 

his face and said, "They're at the door, they're coming in now." 

He conceded that he could not ascertain who Bentley was speaking 

to at the time, and that Bentley was not arrested by Jersey City 

police officers. He added that Bentley was taken from the scene 

by "another agency."

Trowbridge testified that he "believe[d]" Goodman relayed 

his purported conversation with Bentley over the radio and that 

he heard the transmission. Moreover, although he had no 

awareness that there was anyone inside the apartment on the 

second floor, he decided to enter that apartment based on 

Goodman's transmission, and the fact that he had heard someone 
23 A-1028-13T2

running on the second floor. He conceded he could not identify 

the person he heard running upstairs, and that defendant did not 

have a cellphone at the time he was arrested.

Trowbridge also testified that "alerting individuals 

involved in drug activity that there are police present" is a 

crime; however, he explained that Bentley was not arrested in 

connection with the narcotics investigation because Bentley's 

phone call could have been made "for — the reason the other 

agency was there for or it could have been for what [the 

narcotics officers] were there for. [He] didn’t determine that. 

The other agency at the time took [Bentley] with them." 

Sergeant Trowbridge added, "I couldn’t determine if [Bentley] 

was notifying them that, you know, as part of the drug 

investigation, or the other investigation that was being 

conducted." The nature of the "other investigation" – that the 

U.S. Marshals were pursuing defendant on a warrant for an 

alleged homicide — was not revealed at trial. 

During the charge conference, defense counsel asked the 

judge to give the jury a "mere presence" charge, in view of the 

fact that the only link between defendant and the second floor 

apartment was the presence of a letter bearing defendant's name. 

That letter had a different address than the building where it 

was found. The only other fact was that defendant was arrested 
24 A-1028-13T2

in the apartment on the third floor. The judge declined to give 

the charge because, in his view, "there is no such charge."

Additionally, the judge gave the jury an instruction on 

flight as evidence of guilt. Model Jury Charges, Criminal—Flight

(May 2010). The instruction given by the judge on the issue of 

flight, while otherwise consistent with the Model Charge,

nonetheless was untethered to any facts developed at trial. The 

judge stated only that "some evidence" had been elicited at

trial from which the jury "may infer" that defendant fled.

During the State's closing statement, the prosecutor 

argued, "You can consider the fact that [defendant] ran from the 

second floor to the third floor as consciousness of guilt. . . .

He was putting distance between himself and those police 

officers, who he knew, based upon Mr. Bentley's phone call, were 

on their way into [the building]." This argument was made 

without objection by defendant.

At the beginning of the first full day of deliberations, 

the jury asked the court:

What happens if we are not unanimous about 

the decision of one of the Defendants? Was 

there statements provided about the 

relationship between Randolph and tenant, 

Randolph and Markees, Markees and tenant?

. . . .
25 A-1028-13T2

Where in the third floor apartment was 

Randolph arrested from and where was he 

hiding?

In response, the trial court instructed the jurors that they 

should rely upon their own memory of the testimony at trial, 

"use [their] own good common sense[,]" and to send a note if 

they wanted a read-back of particular testimony. As we have 

noted, the jury subsequently returned a guilty verdict on all 

counts of the indictment. 

Addressing first defendant's argument that the trial judge 

erred in refusing to charge "mere presence," we hold that, in 

the circumstances of this case, the judge's refusal to craft 

that charge and instruct the jury with respect to its 

applicability was prejudicial error, despite the judge's 

comprehensive charge to the jury on the principle of 

"constructive possession."

"Clear and correct jury instructions are essential for a 

fair trial." State v. Brown, 138 N.J. 481, 522 (1994). "'A 

[jury] charge is a road map to guide the jury, and without an 

appropriate charge, a jury can take a wrong turn in its

deliberations.'" State v. Nelson, 173 N.J. 417, 446 (2002)

(quoting State v. Martin, 119 N.J. 2, 15 (1990)). Trial courts 

have a sua sponte obligation to provide correct charges, State 

v. Robinson, 136 N.J. 476, 489 (1994), and erroneous 
26 A-1028-13T2

instructions are "poor candidates for rehabilitation under the 

harmless error philosophy." State v. Loftin, 146 N.J. 295, 412 

(1996)(quoting State v. Simon, 79 N.J. 191, 206 (1979)). 

"Mere presence" at the place where the contraband is 

located is insufficient to establish constructive possession. 

State v. Whyte, 256 N.J. Super. 518, 523 (App. Div. 1992). 

There must "be circumstances beyond mere presence" that permit a 

reasonable inference of the defendant's intention and capacity 

to exercise control over the object and the defendant's 

knowledge of what the object is. Ibid.; see also State v. 

Palacio, 111 N.J. 543, 551-54 (1988), and State v. Shipp, 216 

N.J. Super. 662, 664-65 (App. Div. 1987). 

We recognize that ordinarily the model jury instruction

leaves no "room to doubt that 'mere presence' [is] insufficient 

to bring about a finding of the necessary elements of 

possession." State v. Montesano, 298 N.J. Super. 597, 612-15 

(App. Div.), certif. denied, 150 N.J. 27 (1997). However, we 

have also held that in limited circumstances the jury charge 

must be tailored to ensure that the jury understands that "mere 

presence" will not suffice. 

In Montesano, we held that an accurate and complete charge 

on possession and constructive possession, read "as a whole, . . 

. left no room to doubt that 'mere presence' was insufficient to 
27 A-1028-13T2

bring about a finding of the necessary elements of possession." 

Ibid. However, in the case before us, given the paucity of 

proofs connecting defendant to the CDS found in the apartment, 

and the jury question suggesting that jurors had concerns about 

the issue, it was incumbent upon the judge to clearly apprise 

the jury on the law pertaining to defendant's "mere presence" in 

the building. The failure to do so invited the jury to 

speculate about a legal issue that required a clear instruction 

by the judge.

"When a jury requests clarification, the trial judge is 

obligated to clear the confusion." State v. Conway, 193 N.J. 

Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984).

"A question . . . means that one or more jurors need help and 

that the matter is of sufficient importance that the jury is 

unable to continue its deliberations until the judge furnishes 

that help." State v. Parsons, 270 N.J. Super. 213, 221 (App. 

Div. 1994). Here, the jury's question, reasonably understood, 

sought guidance from the court respecting the relationship of 

defendant to the apartment. That question had an unambiguous 

and well-settled legal answer, which is that defendant's mere 

presence in the building, without more, is a legally 

insufficient basis to support a finding of constructive 

possession, and that "all of the surrounding circumstances" must 
28 A-1028-13T2

be considered in their "totality" in evaluating whether the 

State has established that a defendant was in constructive 

possession of contraband. Palacio, supra, 111 N.J. at 547 

(quoting the jury charge given by the trial court with 

approval).

In Shipp, supra, we concluded that the defendant's mere 

presence, without more, in a vehicle where a passenger is 

carrying drugs does not necessitate the conclusion that "he was 

sharing in the international control and dominion over the 

contraband." 216 N.J. Super. at 666. In Montesano, supra, 

while we concluded that it was not reversible error for the 

trial judge to refuse defendant's request to charge the jury on 

"mere presence," 298 N.J. Super. at 614, we noted that unlike 

Shipp, the defendant was the driver of a car containing CDS, 

that he made inculpatory statements after the drugs were found, 

and that he also had the same drug in his bag which he admitted 

belonged to him. Thus "the charge, combined with the evidence . 

. . and the jury charge taken as a whole, resulted in an 

accurate statement of the law." Montesano, supra, 298 N.J. 

Super. at 615. 

In Palacio, supra, the Supreme Court approved a jury 

charge which is instructive here. There, a large quantity of 

cocaine was found hidden in a secret compartment in a vehicle 
29 A-1028-13T2

behind the seat. 111 N.J. at 545. Both the driver and the 

defendant, a passenger, were arrested. Ibid. At trial, the 

judge instructed the jury that:

the fact that the defendant was an occupant 

of a vehicle, which undoubtedly contained 

cocaine, . . . the status of the defendant 

in relation to the vehicle, how long . . . 

the defendant [was] in the vehicle, . . . 

the proximity of the defendant to the drugs 

that were ultimately found in the vehicle, . 

. . whether or not those drugs were easily 

accessible to him, . . . his demeanor when 

he was confronted by the police, his 

nervousness, if any, [and] his feigning lack 

of knowledge of the English language, if 

any.

. . . .

[The jury may also] consider whether or not 

it was reasonable for him to be an innocent 

occupant of the motor vehicle, and . . . any 

other evidence or lack of evidence that has 

a bearing upon the elements in this case, 

[including] anything that might have, or 

might not have been found of an 

incriminatory nature on the defendant's 

person, [and proximity or lack thereof] . . . 

of the defendant's personal articles . . . 

to where the drugs were located.

[Id. at 547-48.]

The Court explained that the large quantity of cocaine, the 

value of the drugs, and the conduct of the defendant as the 

drugs were being seized were evidence that the defendant had 

"guilty knowledge of the presence of the drugs." Id. at 552. 
30 A-1028-13T2

In the present case, however, the judge gave no instructions to 

the jury which explicated the significance of its fact-finding. 

The judge should have provided direction focusing the 

jurors' attention on relevant circumstances — the placement and 

accessibility of the contraband in the apartment and defendant's 

access to and connection with the apartment and its occupants. 

Ibid.

We recognize that the model jury charge on constructive 

possession does not include a charge on mere presence, but the 

instruction given by the trial court and quoted by the Supreme 

Court in Palacio illustrates how a court can fashion one that 

gives the jurors guidance in considering the facts of a 

particular case.

The difficulty here is that by directing the jurors, in 

essence, to resolve a question about the law by using "their own 

good common sense," the judge misinformed them. The question of 

guilt was for the jury's determination based on their "common 

sense" consideration of the evidence, but the legal sufficiency 

of "mere presence" is a matter of law, not a question committed 

to the common sense of the jurors deciding individual cases. 

The court's response to the jurors' question, read as whole, was 

clearly capable of leading the jurors to conclude that they were 

free to infer that the State proved defendant's constructive 
31 A-1028-13T2

possession by showing that he was in the building. Because we 

have serious doubt about whether the jurors' verdicts are based 

on a misunderstanding of the law, we reverse his conviction and 

remand for a new trial. R. 2:10-2; State v. Macon, 57 N.J. 325, 

335-36 (1971).

We shall briefly address the judge's charge on flight, 

although, given our conclusion above, it is not necessary to do 

so. Because the issue may arise again at trial, and because we 

do not wish our failure to address the issue as signaling our 

approval of the judge's instruction here, we provide the 

following brief exegesis on the issue of flight.

It is well-established that certain conduct after the

commission of a crime may indicate a defendant's consciousness 

of guilt. State v. Phillips, 166 N.J. Super. 153, 159 (App. 

Div. 1979), certif. denied, 85 N.J. 93 (1980). To be 

admissible, the conduct must be "intrinsically indicative of a 

consciousness of guilt, such as unexplained flight, or an 

unusual exhibition of remorse for the victim of the crime, or 

the switching of clothes with a cell mate before a lineup." 

State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991) 

(quoting Phillips, supra, 166 N.J. Super. at 160). If the 

alleged conduct is not intrinsically self-inculpatory but is 

admitted to show culpability, there is the risk a jury will 
32 A-1028-13T2

impermissibly "speculate, unaided by any evidential base, as to 

defendant's motive in so conducting himself." Phillips, supra, 

166 N.J. Super. at 160.

The most common example of conduct that can give rise to an 

inference of consciousness of guilt is flight. Flight from 

custody or the scene of a crime is generally admissible to draw 

an inference of guilt, State v. Mann, 132 N.J. 410, 418 (1993), 

if done with the purpose of avoiding apprehension, prosecution, 

or arrest. Id. at 418-19; State v. Ingram, 196 N.J. 23, 46 

(2008); State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure" 

is not enough. State v. Long, 119 N.J. 439, 499 (1990).

"For departure to take on the legal significance of flight, 

there must be circumstances present and unexplained which, in 

conjunction with the leaving, reasonably justify an inference 

that it was done with a consciousness of guilt and pursuant to 

an effort to avoid an accusation based on that guilt." Ingram, 

supra, 196 N.J. at 46. Accordingly, an adequate jury 

instruction on flight would require the jury to find not only a 

departure, but also "a motive for the departure, such as an 

attempt to avoid arrest or prosecution, that would turn the 

departure into flight." Mann, supra, 132 N.J. at 421.

Although evidence of flight is generally admissible, "[t]he 

potential for prejudice to the defendant and the marginal 
33 A-1028-13T2

probative value of evidence of flight," requires the court to 

carefully consider the manner in which such evidence is 

presented to a jury. Id. at 420. The probative value of flight 

evidence depends on:

the degree of confidence with which four 

inferences can be drawn: (1) from the 

defendant's behavior to flight; (2) from 

flight to consciousness of guilt; (3) from 

consciousness of guilt to consciousness of 

guilt concerning the crime charged; and (4) 

from consciousness of guilt concerning the 

crime charged to actual guilt of the crime 

charged.

[Ibid. (quoting United States v. Myers, 550 

F.2d 1036, 1049 (5th Cir. 1977)).]

Even in those instances where evidence of a defendant's 

consciousness of guilt is admitted for another purpose, such 

evidence must be accompanied by a limiting instruction advising 

the jury that the evidence is probative for only that other, 

limited purpose and may not be used to draw any inference of 

defendant's consciousness of guilt. See State v. Williams, 190 

N.J. 114, 134 (2007).

The conclusion we draw from examining precedent on flight 

is that such evidence must unequivocally support a reasonable 

inference that the actor's conduct following the commission of a 

crime may be relied upon as evidence of the actor's guilt. 

Given the indirect value of such evidence, and its potential for 

profound prejudice to a defendant, we do not permit equivocal 
34 A-1028-13T2

evidence to be utilized by a jury in this manner, and we 

carefully craft a charge to the jury explaining the proper uses 

and limits of such evidence. On re-trial, the judge must 

carefully consider whether it is appropriate to charge flight, 

and, if so, must tailor the charge to the facts of the case to 

prevent juror confusion. 

Finally, given our holdings as set forth above, we need not 

address defendant's challenge to the sentence imposed.

Reversed and remanded.