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 of New Jersey v. Gene Hinton (A-3/4-12) (070386)

Argued May 14, 2013 -- Decided October 24, 2013

PATTERSON, J., writing for a majority of the Court.

In this appeal, the Court determines whether, following execution of a warrant of removal in an eviction 

proceeding, a defendant has a constitutionally protected reasonable expectation of privacy in an apartment he 

previously shared with his mother.

Until her death in March 2009, defendant Gene Hinton’s mother was the tenant in an apartment owned by 

the Newark Housing Authority. Although Hinton had his mother’s consent to reside in the apartment, he did not 

have a lease or any other documents identifying him as a tenant. On an unknown date, the landlord commenced a 

summary dispossession action, and a warrant of removal was issued on March 31, 2009. On April 6, when no one 

answered his knock, Special Civil Part Officer Ricardo Pratt served the warrant by placing it under the apartment 

door. The warrant warned that any persons were required to vacate the premises by April 10, at which time a court 

officer would remove any remaining persons and the landlord could remove all property from the apartment and 

repossess it. It further explained that the tenant could attempt to stop execution by applying to the court for relief.

On April 13, one week after serving the warrant, Pratt performed a non-payment of rent eviction, searching 

the apartment to ensure that it was safe and there were no fire hazards or hidden occupants. When checking the 

bedroom, Pratt saw a “wide open” shoe box in the middle of the bed containing what he believed to be illegal drugs, 

as well as two bags containing a large amount of money and more envelopes of drugs. Pratt alerted the Newark 

Police Department, had the locks changed, and waited outside for officers to arrive. Although the warrant of 

removal did not authorize the officers to search the apartment, they entered and identified the drugs as heroin. 

Hinton arrived and explained that he lived in the apartment alone since his mother’s death. After confirming that he 

owned the shoe box, Hinton was arrested. 

Hinton moved to suppress his statements to the police, as well as the evidence seized from the apartment. 

The trial court denied the motion, holding that Pratt’s actions were not governmental in nature and the officers had 

probable cause to conduct a search based on Pratt’s reliable citizen informant tip. Although it did not address 

whether Hinton had a reasonable expectation of privacy, it found that the State’s actions fell within the plain view 

exception to the warrant requirement. Hinton was convicted of third degree possession of a controlled dangerous 

substance and possession with intent to distribute and was sentenced to two years of probation.

Hinton appealed his conviction and sentence, arguing that: (1) his motion to suppress the seized evidence 

should have been granted; (2) his statements to police were improperly admitted; (3) the court’s verdict was against 

the weight of the evidence; and (4) his sentence should be modified. The Appellate Division agreed that Pratt’s 

entry into the apartment did not raise constitutional issues, but determined that Hinton had a reasonable expectation 

of privacy in the premises. The panel explained that execution of the warrant of removal did not terminate Hinton’s 

ownership interest, and he retained access to potential legal remedies such as a stay. Therefore, the officers 

conducted an improper warrantless search. Without reaching Hinton’s other arguments, the panel reversed the 

denial of his suppression motion and his conviction. The Court granted the State’s petition for certification and 

Hinton’s cross-petition, which preserved those issues not reached by the Appellate Division. 212 N.J. 106 (2012).

HELD: Where, as here, an eviction proceeding has advanced to the point that a warrant of removal has been 

executed, a tenant does not have a reasonable expectation of privacy in the premises. Therefore, the police action in 

Hinton’s apartment was not a “search” under either the Fourth Amendment of the United States Constitution or 

Article I, Paragraph 7 of the New Jersey Constitution.
2

1. New Jersey’s Anti-Eviction Act authorizes removal of tenants from property for reasons including nonpayment 

of rent, and, along with the Tenant Hardship Act, establishes the steps for removal. The first step requires issuance 

of a warrant of removal no earlier than three days following entry of a judgment for possession. In accordance with 

the Fair Eviction Notice Act, the warrant must provide notice of the tenant’s right to apply for a stay, the method for 

execution of the warrant, and the procedures under which the landlord may remove the tenant’s property. Once the 

warrant is issued, it may not be executed for another three days. After expiration of this second three-day period, a 

court officer may remove the tenant and any other persons from the premises. Where, as here, a warrant of removal 

is issued for nonpayment of rent, the tenant is on notice during the second three-day period that dispossession, 

including a lockout, may be imminent. Although the Special Civil Part retains jurisdiction for ten days to hear any 

application by the tenant for lawful relief, the tenant’s status has fundamentally changed once this pivotal stage in 

the process is reached. (pp. 16-21)

2. When the Court reviews a ruling applying legal principles to factual findings, it defers to the factual findings but 

reviews de novo application of the legal principles. Turning first to the question of whether Hinton’s rights were 

violated under the Fourth Amendment to the United States Constitution, the Court notes that consideration of an 

objection to the admission of evidence obtained by a search or seizure requires a threshold determination of whether 

the challenged search or seizure violated the defendant’s reasonable expectation of privacy. To that end, the United 

States Supreme Court dispensed with a separate standing inquiry and implemented a two-pronged inquiry regarding 

the extent of a defendant’s rights under the Fourth Amendment, asking whether: (1) the defendant manifested a 

subjective expectation of privacy in the object of the search; and (2) the expectation of privacy was reasonable. A 

tenant’s reasonable expectation of privacy can hinge on his or her legal status following an eviction. Here, assuming 

defendant satisfies the first prong, he fails to make a showing on the second prong. When Hinton left the apartment 

on April 13, 2009, he was on notice that a court officer could enter, restore control of the premises to the landlord, 

and prohibit Hinton’s access. Thus, any reasonable expectation of privacy Hinton may have had in the apartment 

was terminated at this stage of the eviction proceeding. (pp. 21-28)

3. Article I, Paragraph 7 of the New Jersey Constitution similarly protects individuals from warrantless searches of 

homes. Unlike federal law, New Jersey law confers automatic standing on a defendant to object to the admission of 

seized evidence where, as here, the defendant is charged with an offense in which possession is an essential element 

of guilt. However, Hinton’s automatic standing to file a suppression motion does not necessarily equate to a finding

that he had a substantive right of privacy which would mandate grant of his motion. Rather, since the merits of the 

motion rest on whether Hinton possessed a reasonable expectation of privacy in the premises, that issue must be 

addressed as part of the substantive constitutional analysis. (pp. 28-33) 

4. Unlike the federal two-pronged test, New Jersey law only requires that the expectation of privacy be reasonable. 

New Jersey courts have found that the reasonableness of a defendant’s expectation of privacy in a particular 

premises turns in large part on his or her legal right to occupy it. Here, as of the date of the search, Hinton had been 

on notice for a week that an eviction proceeding was pending and had reached a pivotal stage. During that time, he 

never sought court intervention. At that point, any expectation of privacy on Hinton’s part was unreasonable. Thus, 

under the particular circumstances of this case, the police action was not a search for purposes of the federal or State 

constitution. However, because this conclusion does not entirely resolve the question of whether the trial court 

properly denied Hinton’s motion to suppress, the matter must be remanded to the Appellate Division for 

consideration of Hinton’s challenge with respect to the seizure of the disputed evidence, as well as the other issues 

that were not previously addressed by the Appellate Division. (pp. 33-40) 

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

Division for further proceedings in accordance with the Court’s opinion.

JUSTICE ALBIN, DISSENTING, joined by JUDGE RODRÍGUEZ, expresses the view that a 

defendant who possesses automatic standing to object to a search under New Jersey law should not be required to 

clear another layer of standing by establishing a reasonable expectation of privacy, and that such a requirement 

contravenes New Jersey case law and could lead to confusion if expanded beyond the novel scenario in this case. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join in JUSTICE 

PATTERSON’s opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUDGE 

RODRÍGUEZ (temporarily assigned) joins. JUDGE CUFF (temporarily assigned) did not participate.
1

SUPREME COURT OF NEW JERSEY

A-3/4 September Term 2012

070386

STATE OF NEW JERSEY,

Plaintiff-Appellant 

and Cross-Respondent,

v.

GENE HINTON,

Defendant-Respondent 

and Cross-Appellant.

Argued May 14, 2013 – Decided October 24, 2013

On certification to the Superior Court, 

Appellate Division.

Emily R. Anderson, Deputy Attorney General, 

argued the cause for appellant (Jeffrey S. 

Chiesa, Attorney General of New Jersey, 

attorney).

Matthew Astore, Deputy Public Defender, 

argued the cause for respondent (Joseph E. 

Krakora, Public Defender, attorney; Mr. 

Astore and Anthony J. Cariddi, Designated 

Counsel, on the briefs).

Alexander R. Shalom argued the cause for 

amicus curiae American Civil Liberties Union 

of New Jersey Foundation (Edward L. Barocas, 

Legal Director, attorney).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, the Court determines whether, after a court 

officer executed a warrant of removal that had been issued in an 

eviction proceeding, defendant Gene Hinton had a 
2

constitutionally protected reasonable expectation of privacy in 

the apartment he had previously shared with his mother.

In March 2009, defendant’s mother, the legal tenant of the 

apartment, died. On a date not revealed in the record, the 

apartment’s owner, evidently unaware of the tenant’s death,

instituted an action to summarily dispossess her for nonpayment 

of rent. The eviction action proceeded and the court issued a 

warrant of removal pursuant to N.J.S.A. 2A:18-57. The warrant 

directed a court officer to dispossess the tenant and restore 

full possession of the apartment to the landlord after the 

expiration of a three-day grace period. The warrant further 

ordered the tenant to immediately vacate the premises pending an 

imminent dispossession. A week after the warrant was left at 

the apartment, a court officer entered the apartment to conduct 

a safety inspection and change the locks. During the 

inspection, the court officer saw a shoe box containing 

envelopes of heroin and a bag of currency on the bed in 

defendant’s bedroom. He summoned police. Upon their arrival, 

police officers entered the apartment without a warrant and

seized the shoe box. Officers arrested defendant upon his 

arrival at the apartment.

Defendant was indicted for several drug possession 

offenses. Prior to trial, he moved to suppress the evidence 

found at the apartment. The trial court denied the motion to 
3

suppress and, after a bench trial, convicted defendant of two 

third-degree offenses. The Appellate Division reversed 

defendant’s conviction. It held that defendant had a reasonable 

expectation of privacy in his mother’s apartment and that the 

police had conducted a warrantless search that violated 

defendant’s constitutional right against unreasonable search and 

seizure. We granted the parties’ cross-petitions for 

certification.

We reverse the Appellate Division’s judgment. We hold that 

at the advanced stage to which the eviction had proceeded, 

defendant did not have a reasonable expectation of privacy under 

federal or state constitutional norms. Defendant was served 

with official notice that a court officer would soon enter the 

premises and repossess it on the landlord’s behalf. If, 

notwithstanding that notice, defendant maintained a subjective

expectation of privacy in the apartment and the items in 

dispute, his expectation was objectively unreasonable. 

Accordingly, the officers did not conduct a search prohibited by

the Fourth Amendment to the United States Constitution or 

Article I, Paragraph 7 of the New Jersey Constitution. 

We remand the matter to the Appellate Division for 

consideration of the constitutionality of the officers’ seizure 

of the disputed evidence and for review of the other issues 
4

raised by defendant that the panel did not determine in light of 

its earlier judgment. 

I.

The factual record considered by the trial court and 

reviewed on appeal was developed in the May 25, 2010 suppression 

hearing conducted by the trial judge. The State presented three 

witnesses: Special Civil Part Officer Ricardo Pratt of the 

Superior Court of New Jersey, Newark Police Officer Carmen 

Rivera and Newark Police Sergeant Thomas Roe. Defendant did not 

testify or present witnesses at the hearing.

The setting of this case was an apartment owned by the 

Newark Housing Authority. Defendant’s mother, Essie Hinton, was 

the “occupant or at least the lease holder” of the apartment 

from an undetermined date until her death in March 2009. On a 

date that is not revealed in the record, the landlord commenced 

a summary dispossession action. On March 31, 2009, a Superior 

Court judge issued a warrant of removal with respect to the 

Hinton apartment, addressed to Ms. Hinton as “tenant.” The 

warrant of removal instructed a Special Civil Part Officer to 

“dispossess the tenant and place the landlord in full possession 

of the premises.” It directed the officer to “remove all 

persons and property from the . . . premises within three days 

after receiving this warrant.” The warrant also advised of the 

consequences of the failure to vacate: “[i]f you fail to move 
5

within three days, a court officer will thereafter remove all 

persons from the premises at any time between the hours of 8:30 

A.M. and 4:30 P.M.” on April 10, 2009, and, “[t]hereafter, your 

possessions may be removed by the landlord, subject to 

applicable law (N.J.S.A. 2A:18-72 et seq.).” The warrant of 

removal further instructed the tenant:

You may be able to stop this warrant and 

remain in the premises temporarily if you 

apply to the court for relief. You may 

apply for relief by delivering a written 

request to the Clerk of the Special Civil 

Part and to the landlord or landlord’s 

attorney. Your request must be personally 

delivered and received by the Clerk within 

three days after this warrant was served or 

you may be locked out. Before stopping this 

warrant, the court may include certain 

conditions, such as the payment of rent.

The warrant provided that only a court officer could execute it, 

and barred a landlord “to padlock or otherwise block entry to a 

rental premises while a tenant who lives there is still in legal 

possession.” 

On April 6, 2009, Special Civil Part Officer Pratt served

the warrant. He “gave the tenant or the defendant, the owner of 

the apartment, Ms. [Essie] Hinton . . . 72 hours[’] notice from 

April 6th of 2009 and she was to vacate the apartment by April 

10th, 2009.” Special Civil Part Officer Pratt served the 

warrant by placing it under the door, his customary practice

when a resident fails to respond to a knock on the door. 
6

Special Civil Part Officer Pratt knew of no tenant other than 

Ms. Hinton, whose name was listed on the warrant. He testified 

that defendant’s name was not associated with the apartment.

Special Civil Part Officer Pratt further testified that 

when he confronts a situation in which a tenant does not vacate 

the premises within three days after service of a warrant of 

removal, his practice is “to go there and remove any persons 

within the apartment so that [he] may change locks and . . .

place the landlord in possession of the apartment.” In addition 

to padlocking the door, Special Civil Part Officer Pratt’s 

routine is to “go through the entire apartment.” His 

responsibility is “to check under the beds, . . . check inside 

the closets, and . . . make sure there[ are] no fire hazards or 

any persons hiding in the apartment.” Although the warrant 

permits the landlord to remove property inside the apartment, 

Special Civil Part Officer Pratt’s “authorization has nothing to 

do with the property inside the apartment other than making sure 

that it’s safe” and verifying there are “no fire hazards.” 

Special Civil Part Officer Pratt followed that practice on

the afternoon of April 13, 2009, one week after he served the 

notice at the Hinton apartment. He performed what he 

characterized as a “non-payment-of-rent eviction for Newark 

Housing Authority.” Special Civil Part Officer Pratt signed and 

dated the warrant. He went to the apartment with a repairman, 
7

who was given keys to the building by the building manager and 

was assigned to change the locks. Special Civil Part Officer 

Pratt entered the apartment and initially determined that the 

living room and bathroom were clear. He proceeded to the 

bedroom, where he “saw a shoe box in the middle of the bed”

containing what he thought were illegal drugs. Special Civil 

Part Officer Pratt testified that in the “wide open” shoe box

“there was one of these packages that was opened[ a]nd some of 

the little envelopes that [he] recognize[d] as heroin [were] 

spilling out into the shoe box.” Furthermore, Special Civil 

Part Officer Pratt testified that there were more envelopes in a 

blue bag and another bag with “a large amount of currency” on 

the bed.

Special Civil Part Officer Pratt called the Newark Police

Department and told them what he had found. He then instructed 

the repairman to continue to change the locks. When that job 

was completed, Special Civil Part Officer Pratt locked the door, 

left the apartment and waited outside for the officers to 

arrive.

Officer Rivera, with Officer Ana Colon, responded to 

Special Civil Part Officer Pratt’s call within five to ten 

minutes. They knew from the phone call that Special Civil Part 

Officer Pratt had found what he thought to be drugs inside the 

apartment and their “purpose was to verify that it was true.” 
8

When Officers Rivera and Colon arrived, Special Civil Part 

Officer Pratt informed them that “he had a warrant to padlock 

the door due to the fact that . . . the resident had passed, 

died two weeks prior.” Special Civil Part Officer Pratt

explained to the officers that he had entered the apartment “to 

ensure that there . . . were no animals or persons inside before 

he padlocked the door,” and that in the course of his inspection 

“he came across the shoe box containing [heroin] and money.” He 

showed the officers the warrant of removal, which did not 

authorize them to search the apartment. By Officer Rivera’s 

admission, the officers had sufficient time to obtain a search 

warrant because the lock on the apartment had been changed by 

the time they arrived. They did not, however, obtain a warrant 

before their entry into the apartment.

Special Civil Part Officer Pratt opened the apartment door 

and showed Officers Rivera and Colon the shoe box and bag on the 

bed. According to Officer Rivera, the officers observed heroin 

wrapped in bundles of magazine paper. The officers summoned 

their supervisor, Sergeant Rodriguez. When Sergeant Rodriguez 

arrived at the scene, he examined the box and identified the 

contents as heroin. Defendant’s niece arrived and informed the 

officers that defendant had been living in the apartment.

Officer Colon contacted Sergeant Roe, advising him that they 

found “narcotics and currency . . . inside the apartment.” When 
9

Sergeant Roe arrived, the other police officers were waiting in 

the hallway with Special Civil Part Officer Pratt. 

At that moment, defendant arrived. He “pointed at the 

apartment as being his,” and asked, “what’s going on? What’s 

going on? This is my place.” After identifying himself, 

Special Civil Part Officer Pratt advised defendant that he was 

serving a warrant of removal and was there to padlock the door. 

Sergeant Rodriguez asked whether anyone lived or stayed in the 

apartment with defendant, and defendant responded that his 

mother had recently passed away and that he currently lived 

alone. Defendant admitted that he had neither a lease nor other 

paperwork identifying him as a tenant of the apartment. 

Sergeant Roe did not request or obtain defendant’s permission to 

enter the premises. Sergeant Roe testified that “according to 

the Housing Authority, there was no bona fide resident” of the 

apartment, in light of Ms. Hinton’s recent death. 

Accompanied by Sergeants Rodriguez and Roe and Special 

Civil Part Officer Pratt, defendant entered the apartment and 

approached the items on the bed. Defendant confirmed that the 

room was his bedroom and that he was the owner of the shoe box 

on the bed. He was taken to the living room of the apartment 

and arrested.1

 

1 Defendant testified at the bench trial. He told the court that 

he was fifty years old. He testified he had lived in the 
10

II.

Defendant was indicted for third-degree possession of a 

controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1),

second-degree possession of CDS with intent to distribute, 

N.J.S.A. 2C:35-5(b)(2), third-degree possession of CDS with 

intent to distribute within 1000 feet of school property, 

N.J.S.A. 2C:35-7, and second-degree possession of CDS with 

intent to distribute within 500 feet of a public housing 

facility, park or building, N.J.S.A. 2C:35-7.1. He

unsuccessfully sought admission into pre-trial intervention 

(PTI), and, subsequently, the case proceeded to trial.

Defendant moved to suppress his statements to the police 

and the drugs and related items seized from the apartment. 

Following the evidentiary hearing at which the trial judge 

 

apartment, which was in a senior citizens’ building, for six 

years with his mother’s consent and with the knowledge of the 

building manager, and that his nephew also frequented the 

apartment. He admitted that he received notice of the warrant 

of removal about four days prior to the April 13, 2009 lockout. 

He stated on the morning of April 13, 2009, he went to court in 

an unsuccessful attempt to try to stop the eviction proceeding. 

He said that he had confirmed with the building manager that the 

rent was current. Defendant testified that he was handcuffed 

outside of the apartment and escorted inside, and that he had 

confirmed his ownership of the shoe box although he did not know 

at the time that it contained heroin. He denied ever having 

seen or possessed heroin. Because defendant’s testimony was not 

before the trial judge when he decided the motion to suppress, 

it is not part of the record reviewed in this appeal. See State 

v. Carvajal, 202 N.J. 214, 219 n.1 (2010) (considering only 

stipulated facts for review of motion to suppress); State v. 

Mai, 202 N.J. 12, 17-18 (2010) (limiting review of facts to 

those “adduced before [the court] at the suppression hearing”).
11

elicited the factual record set forth above, the court denied 

the motion to suppress. It held that Special Civil Part Officer 

Pratt’s actions were not governmental action for purposes of the 

constitutional analysis because Special Civil Part Officer Pratt

was a private individual conducting a court-authorized action.

The court then found that, under the totality of the 

circumstances, the police officers had probable cause to conduct 

a search because Special Civil Part Officer Pratt was a citizen 

informant and provided a reliable tip, and that the officers 

conducted a fluid and unplanned investigation in response to 

that tip. The court did not determine whether defendant had a 

reasonable expectation of privacy that was violated by the 

officers’ entry into the apartment or whether a warrant was 

required for that entry. It concluded that the plain view 

doctrine did not apply because the initial observation of the 

evidence was made by a private citizen, not one of the police 

officers. Nevertheless, the court found the State’s actions 

fell within the plain view exception to the warrant requirement.

The court also denied defendant’s motion to suppress the 

statements that he made to the police, holding that the 

officers’ questioning was only a field inquiry that did not 

implicate Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 

L. Ed. 2d 694 (1966). 
12

At his bench trial, defendant’s strategy was to deny that 

the heroin found by Special Civil Part Officer Pratt was his. 

Defendant’s counsel argued that when defendant identified the 

box on the bed as his, he did not see the heroin and was unaware 

of its presence. Defense counsel emphasized that defendant’s 

nephew shared access to the apartment and suggested that the 

drugs belonged to defendant’s nephew, not defendant.

The trial judge rejected this argument. He found 

defendant’s testimony to be inconsistent and found the State’s 

witnesses to be more credible. The judge found that the heroin 

and money were in defendant’s possession for purposes of 

distribution, given the quantity of both. He convicted 

defendant of third-degree possession of CDS and third-degree 

possession of CDS with intent to distribute. The trial judge 

denied defendant’s motion for a new trial and affirmed the 

prosecutor’s denial of defendant’s renewed application for PTI. 

Prior to sentencing defendant, the trial judge merged the

possession offense into the distribution offense. Finding no 

aggravating factors but considering several mitigating factors, 

including defendant’s age, lack of a prior criminal record, lack 

of a history of substance abuse, and stable employment, the 

trial judge sentenced defendant to two years of probation.

Defendant appealed his conviction and sentence. He argued 

that his motion to suppress the heroin and money should have 
13

been granted. He also challenged the admission of his 

statements to police, argued that the trial judge’s verdict was 

against the weight of the evidence, and sought modification of 

his sentence. 

The Appellate Division reversed the trial court’s denial of 

defendant’s motion to suppress the drugs and money and,

accordingly, reversed his conviction. The panel agreed with the 

trial court that Special Civil Part Officer Pratt’s entry into 

the apartment raised no constitutional issues. It found, 

however, that defendant had a reasonable expectation of privacy 

in the apartment and that the officers therefore conducted a 

warrantless search. The panel relied in part on defendant’s 

testimony that he had his mother’s consent to remain in the 

apartment and that the superintendent was aware of his presence 

in his mother’s home. It concluded that Special Civil Part 

Officer Pratt’s execution of the warrant of removal and 

installation of a new lock on the apartment did not terminate 

defendant’s ownership interest in the premises. The panel

explained that when the police entered the apartment defendant 

still had access to potential legal remedies, such as a stay or 

order vacating the writ of removal. The panel reached an issue 

not raised by the State -- whether exigent circumstances 

justified the warrantless entry into the apartment -- and 

concluded that no such circumstances existed. The panel 
14

reversed the conviction on the evidentiary issue alone and did 

not reach the other issues raised by defendant in his appellate 

brief.

We granted the State’s petition for certification. 212 

N.J. 105 (2012). We also granted defendant’s cross-petition for 

certification, which preserves the trial and sentencing issues 

that defendant raised but the Appellate Division did not decide. 

212 N.J. 106 (2012).

III.

The State argues that no search occurred in this case 

because defendant had no constitutionally protected reasonable 

expectation of privacy in an apartment in which he had no legal 

right to live and from which he had been lawfully evicted. It

asserts that in light of the notice to defendant that he was 

required to vacate the premises and remove his property within 

seventy-two hours -– a deadline that passed days before the 

police entry -– defendant had no possessory interest or 

reasonable expectation that the premises would remain private. 

The State contends that, in light of the eviction, the lockout 

of the apartment and the Newark Housing Authority’s assumption 

of full control over the premises, the police officers’ entry 

into the apartment did not offend federal or state 

constitutional norms. It justifies the seizure of the heroin 

under the plain view exception to the warrant requirement, 
15

arguing that the officers did not conduct a search of the 

apartment but examined and confiscated evidence of a crime that 

was plainly visible to them upon their lawful entry.

Defendant counters that his reasonable expectation of 

privacy in the apartment was unaffected by the pending eviction 

proceedings or the lockout. He argues that the State 

exaggerates the impact of the landlord’s power to exclude, which 

he characterizes as only one of several relevant factors. 

Defendant argues that while remedies to the eviction were still 

available to him, he retained his reasonable expectation of 

privacy in the apartment notwithstanding the legal steps taken 

by the landlord. He contends that no recognized exception to 

the warrant requirement governs this case.

Amicus curiae American Civil Liberties Union of New Jersey 

(ACLU) argues that defendant’s reasonable expectation of privacy 

in the apartment survived as long as the courts retained 

jurisdiction to grant defendant a remedy in the eviction 

proceedings and the landlord was constrained by statute from 

removing and disposing of the resident’s belongings. ACLU 

asserts that the legality of defendant’s residence in the 

apartment is irrelevant because he lived there with the 

permission of the legal tenant, his mother. 

IV.
16

The constitutional question under review arises in the 

context of a public housing agency’s2 summary dispossess

proceedings, governed by the Anti-Eviction Act, N.J.S.A. 2A:18-

53 to -71, the Tenant Hardship Act, N.J.S.A. 2A:42-10.6 to -

10.9, the Fair Eviction Notice Act, N.J.S.A. 2A:42-10.15 to -

10.16, and the court rules. 

With exceptions that are inapplicable here, the AntiEviction Act authorizes the removal of any “lessee or tenant or 

the assigns . . . from any house, building, mobile home or land 

in a mobile home park or tenement leased for residential 

purposes.” N.J.S.A. 2A:18-61.1.3 The statute defines grounds 

for dispossession including, among others, failure “to pay rent 

due and owing under the lease,” N.J.S.A. 2A:18-61.1(a), 

disorderly conduct that, after notice to cease, “destroy[s] the 

 

2 The Newark Housing Authority “is a public housing agency 

subject to the United States Housing Act of 1937 . . . and 

regulations enacted pursuant thereto.” Hous. Auth. of Newark v. 

Raindrop, 287 N.J. Super. 222, 225 (App. Div. 1996). 

3 The complaint in a summary dispossess action based upon 

nonpayment of rent “must expressly state the owner’s identity, 

the relationship of the plaintiff to the owner, [and] the amount 

of rent owed as of the date of the complaint,” and must include 

specific provisions for the tenant to pay the outstanding rent 

prior to trial. R. 6:3-4(c). The complaint must be served with 

a summons that “shall conform with the requirements of R. 4:4-

2.” R. 6:2-1. Instead of “directing the defendant to file an 

answer, the summons shall require the defendant to appear and 

state a defense at a certain time and place, to be therein 

specified, which time shall be not less than 10 days in summary 

dispossess actions . . . nor more than 30 days from the date of 

service of the summons, and shall notify the defendant that upon 

failure to do so, judgment by default may be rendered for the 

relief demanded in the complaint.” Ibid.
17

peace and quiet of the occupants or other tenants,” N.J.S.A.

2A:18-61.1(b), and substantial violation or breach of the terms 

of the lease, N.J.S.A. 2A:18-61.1(e). Jurisdiction to grant the 

statutory remedy is contingent upon the existence of one or more 

of these grounds for eviction. Hous. Auth. of Morristown v. 

Little, 135 N.J. 274, 281 (1994) (citing Levine v. Seidel, 128 

N.J. Super. 225, 229 (App. Div.), certif. denied, 65 N.J. 570 

(1974)).

The statute confers jurisdiction upon the Superior Court, 

Law Division, Special Civil Part to hear such cases, but they 

can be tried before a jury upon transfer to the Law Division.

N.J.S.A. 2A:18-60, -61; R. 6:1-2(a)(3), :4-1(g).

4 After the 

entry of judgment of possession in favor of the landlord, the 

Anti-Eviction Act and Tenant Hardship Act establish a series of 

steps that must be taken in accordance with a strict timetable

before the landlord can dispossess the tenant. The first step 

is the issuance of a warrant of removal to enforce the judgment 

for possession, issued absent “sufficient cause . . . shown to 

the contrary when the action comes on for trial.” N.J.S.A.

2A:18-57. The warrant commands an officer of the court “to 

remove all persons from the premises, and to put the claimant 

 

4 When, as in this case, the grounds for the action to dispossess 

the tenant is nonpayment of rent, the landlord is not required 

to serve a demand upon the tenant or give notice to the tenant 

before filing the action. N.J.S.A. 2A:18-61.2. 
18

into full possession thereof.” Ibid. The warrant may not be 

issued “until the expiration of 3 days after the entry of 

judgment for possession.” Ibid. Thus, during this time, the 

judgment does not yet empower a court officer to dispossess the 

tenant or authorize the landlord to disturb the tenant’s 

property.

The Fair Eviction Notice Act also prescribes the content of 

the warrant of removal. The warrant must provide to the tenant: 

(1) notice of his or her right “to apply to the court for a 

stay” of the warrant’s execution, N.J.S.A. 2A:42-10.16(a); (2)

notice of the provision by which the warrant “[s]hall be 

executed not earlier than the third day following the day of 

personal service upon the tenant,” with weekends and court 

holidays excluded, N.J.S.A. 2A:42-10.16(b); (3) notice regarding 

the procedures by which a landlord may remove the tenant’s 

property in accordance with the Abandoned Tenant Property 

statute, N.J.S.A. 2A:18-72 to -84, N.J.S.A. 2A:42-10.16(e); and 

(4) notice of the duties of law enforcement officers, N.J.S.A.

2A:42-10.16(e). 

The issuance of the warrant of removal triggers a second 

three-day statutory period, during which the warrant may not be 

executed. N.J.S.A. 2A:42-10.16(b). At the conclusion of that 

second three-day period, the court officer may execute the 

warrant, removing the tenant and any other persons present from 
19

the premises. See ibid. Once the warrant has been executed and 

possession of the property is restored to the landlord, the 

landlord may take action with respect to property left on the 

premises, in compliance with the notice provisions and other 

requirements of N.J.S.A. 2A:18-72 to -84. In the setting here, 

in which a warrant of removal had been issued for nonpayment of 

rent, the tenant was on notice during this second three-day 

period that dispossession, including a lockout with no further 

notice, may be imminent.

There is yet another significant statutory period. After 

the warrant is executed, the Special Civil Part retains 

jurisdiction to hear an application by the tenant for “lawful 

relief.” N.J.S.A. 2A:42-10.16. The Tenant Hardship Act affords 

discretion to the judge overseeing a summary dispossess action 

to stay the warrant of removal, should he or she deem such a 

stay “proper under the circumstances,” for no longer than six 

months after the entry of the judgment of possession. N.J.S.A.

2A:42-10.6. That provision “enables courts to grant 

discretionary relief to tenants facing eviction.” Little, 

supra, 135 N.J. at 282. “The Tenant Hardship Act has allowed 

trial courts, within the limits of the statute, to mitigate the 

harsh nature of the summary-dispossess procedure by postponing 

for a limited time the execution of a warrant of removal if the 

eviction presents a hardship to the tenant.” Ibid. Such a 
20

stay, however, is only available if the tenant pays all

outstanding rent and “the accrued costs of the action.” 

N.J.S.A. 2A:42-10.6. The tenant who fails to take timely action 

has no remedy under that provision. A court may also vacate a 

judgment pursuant to Rule 4:50-1 if “a grave injustice would 

occur.” Little, supra, 135 N.J. at 289 (expounding that Rule

4:50-1 should be invoked “sparingly, in exceptional 

situations”). 

The tenant also has appellate remedies. Pressler & 

Verniero, Current N.J. Court Rules, comment 2.1 on R. 6:3-4 

(2013) (“[I]t is clear that since summary dispossess judgments 

are now rendered by a constitutional rather than a statutory 

court, they are fully appealable pursuant to R. 2:2-3(a)(1).”); 

Little, supra, 135 N.J. at 280; Twp. of Bloomfield v. Rosanna’s 

Figure Salon, Inc., 253 N.J. Super. 551, 558 (App. Div. 1992)

(reviewing for reversible error). 

Notwithstanding the continued jurisdiction of the Special 

Civil Part to grant discretionary relief during the ten-day 

period following the lockout, the tenant’s status has 

fundamentally changed by the time he or she reaches that stage 

of an eviction. By executing the warrant for dispossession in 

accordance with N.J.S.A. 2A:42-10.16, the court officer restores 

control of the premises to the landlord. Thereafter, the 

landlord may exclude the tenant from the premises except for 
21

limited purposes, such as to collect property pursuant to 

arrangements made with the landlord. See N.J.S.A. 2A:18-57, -

74(c). Thus, under the Anti-Eviction Act and the Tenant 

Hardship Act, the pivotal stage of the proceeding –- when the 

landlord may assume exclusive control of the premises and 

exclude the tenant from it -– occurs when the court officer is 

authorized to execute the warrant following the three-day 

waiting period prescribed by N.J.S.A. 2A:42-10.16(b).

V.

We review the Appellate Division’s determination that on 

April 13, 2009, defendant had a reasonable expectation of 

privacy in the apartment where he had lived with his mother and 

in his property located in that apartment. We conduct that 

review with substantial deference to the trial court’s factual 

findings, which we “‘must uphold . . . so long as those findings 

are supported by sufficient credible evidence in the record.’” 

State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 

192 N.J. 224, 243 (2007)). Issues of law, in contrast, are 

reviewed de novo. Id. at 45; State v. Mann, 203 N.J. 328, 337 

(2010); State v. Gandhi, 201 N.J. 161, 176 (2010). When, as 

here, we consider a ruling that applies legal principles to the 

factual findings of the trial court, we defer to those findings 

but review de novo the application of those principles to the 

factual findings. State v. Harris, 181 N.J. 391, 416 (2004). 
22

The Fourth Amendment to the United States Constitution and 

Article I, Paragraph 7 of the New Jersey Constitution guard 

against warrantless searches of the home. We first determine 

whether defendant had a reasonable expectation of privacy under 

the Fourth Amendment. 

Under federal law, a court considering an objection to the 

admission at trial of evidence obtained by a search or seizure 

must make a threshold determination: whether the challenged 

search or seizure violated the defendant’s reasonable 

expectation of privacy in the invaded location. The current 

constitutional benchmark was articulated in Rakas v. Illinois, 

439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). There, 

the defendants contested the search of an automobile, in which 

they were passengers, which revealed a weapon and ammunition in 

which the defendants had no property interest. Id. at 129-30, 

99 S. Ct. at 423, 58 L. Ed. 2d at 392. Affirming the 

determination of Illinois trial and appellate courts that the 

defendants lacked standing, the United States Supreme Court 

rejected the defendants’ contention that under Jones v. United 

States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960),5

defendants need only establish that they were “‘legitimately on 

 

5 While Rakas merely rejected the Jones standing proposition, 

United States v. Salvucci, 448 U.S. 83, 85, 100 S. Ct. 2547, 

2549, 65 L. Ed. 2d 619, 623-24 (1980), explicitly overruled 

Jones’ automatic standing rule. 
23

[the] premises’” in order to challenge the legality of a search 

in a motion to suppress the fruits of that search. Rakas, 

supra, 439 U.S. at 129-30, 132-35, 99 S. Ct. at 423, 424-25, 58 

L. Ed. 2d at 392, 394-95 (alteration in original).

In Rakas, the Supreme Court dispensed with a separate 

standing inquiry and adopted the “legitimate expectation of 

privacy” analysis set forth in Justice Harlan’s concurring 

opinion in Katz v. United States, 389 U.S. 347, 360-61, 88 S. 

Ct. 507, 516, 19 L. Ed. 2d 576, 587-88 (1967) (Harlan, J., 

concurring), to determine the extent of a defendant’s Fourth 

Amendment rights. Rakas, supra, 439 U.S. at 138-39, 143, 99 S. 

Ct. at 428, 430, 58 L. Ed. 2d at 398, 401. The Supreme Court 

concluded that “the better analysis forth-rightly focuses on the 

extent of a particular defendant’s right under the Fourth 

Amendment, rather than on any theoretically separate, but 

invariably intertwined concept of standing.” Id. at 139, 99 S. 

Ct. at 428, 58 L. Ed. 2d at 398. Under that analysis, the 

Supreme Court rejected the defendants’ claim, holding that they 

had established no reasonable expectation of privacy in a 

vehicle in which they were passengers. Id. at 148-49, 99 S. Ct.

at 433, 58 L. Ed. 2d at 404-05. 

Rakas was followed by Salvucci, in which the Court 

confirmed that a defendant has Fourth Amendment protection if he 

or she has a legitimate expectation of privacy in the place 
24

searched, whether or not he or she has a possessory interest in 

the property seized in the course of the search. Salvucci, 

supra, 448 U.S. at 91-92, 100 S. Ct. at 2552-53, 65 L. Ed. 2d at 

628; cf. Minnesota v. Carter, 525 U.S. 83, 90-91, 119 S. Ct.

469, 473-74, 142 L. Ed. 2d 373, 380-81 (1998) (holding no 

reasonable expectation of privacy in another’s home when purpose 

of visit was business and defendant thereby could not object to 

seizure of evidence); United States v. Padilla, 508 U.S. 77, 81-

82, 113 S. Ct. 1936, 1938, 123 L. Ed. 2d 635, 640-41 (1993)

(explaining that coconspirators and codefendants can only object 

to admission of seized evidence if their rights were violated by 

search itself). 

As the United States Supreme Court noted in California v. 

Ciraolo, a two-part inquiry governs the Fourth Amendment 

analysis:

The touchstone of Fourth Amendment analysis 

is whether a person has a “constitutionally 

protected reasonable expectation of 

privacy.” [Katz, supra, 389 U.S. at 360, 88 

S. Ct. at 516, 19 L. Ed. 2d at 587 (Harlan, 

J., concurring).] Katz posits a two-part 

inquiry: first, has the individual 

manifested a subjective expectation of 

privacy in the object of the challenged 

search? Second, is society willing to 

recognize that expectation as reasonable? 

[California v. Ciraolo, 476 U.S. 207, 211, 

106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210, 215

(1986) (citing Smith v. Maryland, 442 U.S.

735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 

220, 226-27 (1979)); accord United States v. 
25

Jones, 565 U.S. __, __, 132 S. Ct. 945, 954-

55, 181 L. Ed. 2d 911, 924 (2012) 

(Sotomayor, J., concurring); Kyllo v. United 

States, 533 U.S. 27, 33, 121 S. Ct. 2038, 

2042-43, 150 L. Ed. 2d 94, 101 (2001).]

If a defendant does not meet his or her burden to demonstrate 

both prongs of this test, he or she cannot challenge the 

exclusion of the disputed evidence on Fourth Amendment grounds.

Florida v. Riley, 488 U.S. 445, 455, 109 S. Ct. 693, 699, 102 L. 

Ed. 2d 835, 845 (1989) (O’Connor, J., concurring); Rawlings v. 

Kentucky, 448 U.S. 98, 104-05, 100 S. Ct. 2556, 2561, 65 L. Ed.

2d 633, 641 (1980); Rakas, supra, 439 U.S. at 130 n.1, 99 S. Ct.

at 424 n.1, 58 L. Ed. 2d at 393 n.1. We apply that two-pronged 

standard here. We consider only the limited information 

presented at the suppression hearing.

The first inquiry of the federal test -– whether the 

individual manifested a subjective expectation of privacy in the 

object of the challenged search -– is addressed only briefly in 

the record of this case. One of the police officers who 

testified at the suppression hearing stated that defendant 

identified the premises as “his” apartment, asking “what’s going 

on” and calling the apartment “my place.” The same witness, 

however, testified that after Special Civil Part Officer Pratt

identified himself and advised defendant that the apartment was 

subject to a warrant of removal and was about to be padlocked, 
26

defendant admitted that he had no lease or other document that 

would identify the apartment as his own. 

Assuming defendant satisfies the first prong of the twopronged federal analysis, he fails to make a showing on its 

second prong. Under federal law, a tenant’s reasonable 

expectation of privacy can turn on his or her legal status in 

the wake of an eviction. In United States v. Curlin, 638 F.3d 

562, 563 (7th Cir. 2011), the United States Court of Appeals for 

the Seventh Circuit reviewed a trial court’s denial of a 

suppression motion filed by a defendant who was the subject of 

an eviction proceeding. There, the defendant’s landlord twice 

attempted to compel the defendant to appear in court to address 

his failure to pay rent. Ibid. The landlord then obtained an 

eviction order, which compelled defendant to vacate the premises 

within three days and authorized an Indiana constable to restore 

possession of the premises to the landlord. Ibid. After the 

constable twice left copies of the order at Curlin’s residence, 

he and assisting officers arrived at the residence to execute

the eviction order. Ibid. Upon their arrival, they notified 

the defendant of their purpose and conducted a protective sweep

that revealed marijuana and guns in plain view. Id. at 563-64. 

The Court of Appeals held that in the wake of the eviction 

proceedings, the defendant had no societally recognized 

reasonable expectation of privacy:
27

[T]here is a key distinction in this case -–

Curlin had no lawful right to be in the 

residence he was occupying on December 2, 

2008. Curlin had been evicted over two 

weeks earlier following an action in Indiana 

court, and had been given notice of his 

eviction when officers twice left copies of 

the eviction order at the residence. Like a 

“burglar plying his trade in a summer cabin 

during the off season,” Curlin’s presence 

was “wrongful,” and consequently any 

subjective expectation of privacy he may 

have had is not “one that society is 

prepared to recognize as ‘reasonable.’”

Because Curlin had no legitimate expectation 

of privacy in the residence, no Fourth 

Amendment search occurred.

[Id. at 565 (quoting Rakas, supra, 439 U.S.

at 143 n.12, 99 S. Ct. at 430 n.12, 58 L. 

Ed. 2d at 401 n.12).]

The Seventh Circuit’s sound reasoning in Curlin is equally 

applicable to this case. When defendant departed from the 

apartment on April 13, 2009, he was on notice that a court 

officer could enter the apartment, restore control to the 

landlord and authorize a change of the locks that would deprive 

defendant of unsupervised access to the apartment. If defendant 

ever had a societally recognized reasonable expectation of 

privacy in the apartment when his mother was the tenant of the 

apartment, any such expectation terminated at this late stage of 

the eviction. Given that defendant was served with notice that 

the landlord’s eviction action had progressed to the point of an 

imminent lockout, defendant did not have a societally recognized 
28

expectation of privacy at the relevant time.6 Accordingly, under 

federal law, defendant had no reasonable expectation of privacy 

to contest the admission of the evidence in dispute.

VI.

Like the Fourth Amendment, Article I, Paragraph 7 of our 

State Constitution generally protects individuals from 

warrantless searches of the home. Under state law, a “defendant 

 

6 We do not reach the issue of whether defendant previously held

the status of a guest in the apartment leased to his mother 

before the landlord instituted eviction proceedings or whether 

such a status gave rise to a reasonable expectation of privacy 

in the apartment in these circumstances. Under federal law, an 

individual with no ownership or leasehold interest in a home 

may, in some settings, have a reasonable expectation of privacy 

in the premises, by virtue of his or her status as a guest of 

the lawful owner or renter. See Minnesota v. Olson, 495 U.S.

91, 99, 110 S. Ct. 1684, 1689, 109 L. Ed. 2d 85, 95 (1990) 

(holding overnight guests are “entitled to legitimate 

expectation of privacy despite the fact that they have no legal 

interest in the premises and do not have the legal authority to 

determine who may or may not enter the household”); contra

Carter, supra, 525 U.S. at 90-91, 119 S. Ct. at 473-74, 142 L. 

Ed. 2d at 380-81 (holding no reasonable expectation of privacy 

in another’s home when purpose of visit was business and thereby 

could not object to seizure of evidence). Similarly, a hotel 

guest may have a reasonable expectation of privacy in a rental 

room until his or her guest status has been terminated. See

United States v. Young, 573 F.3d 711, 716, 720-21 (9th Cir. 

2009) (holding hotel guest retained reasonable expectation of 

privacy in hotel room and property in room because he was not 

properly evicted from room and hotel staff did not inform him he 

was being evicted); United States v. Bautista, 362 F.3d 584, 590 

(9th Cir. 2004) (concluding guest retains reasonable expectation 

of privacy in hotel room unless occupancy has been lawfully 

terminated). Whether defendant was a “guest” for Fourth 

Amendment purposes when he lived with his mother in the 

apartment is irrelevant because defendant no longer enjoyed that 

status as of April 13, 2009, by virtue of the eviction 

proceedings in this case. 
29

must show that a reasonable or legitimate expectation of privacy

was trammeled by government authorities.” State v. Evers, 175 

N.J. 355, 368-69 (2003); see also State v. Reid, 194 N.J. 386,

396, 401 (2008) (finding reasonable expectation of privacy in 

internet subscriber information); State v. Hempele, 120 N.J.

182, 200, 206 (1990) (finding reasonable expectation of privacy 

in curbside garbage).

Under state as well as federal constitutional norms, “[a]

warrantless search of a person’s home ‘must be subjected to 

particularly careful scrutiny,’ because ‘physical entry of the 

home is the chief evil against which the wording of the Fourth 

Amendment is direct[ed].’” State v. Cassidy, 179 N.J. 150, 160 

(2004) (second alternation in original) (quoting State v. Bolte, 

115 N.J. 579, 583, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 

107 L. Ed. 2d 320 (1989); State v. Hutchins, 116 N.J. 457, 463

(1989)); accord Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct.

1284, 1290, 157 L. Ed. 2d 1068, 1079 (2004); Kyllo, supra, 533 

U.S. at 31, 121 S. Ct. at 2041-42, 150 L. Ed. 2d at 100; State 

v. Vargas, 213 N.J. 301, 312-13 (2013); State v. Edmonds, 211 

N.J. 117, 129 (2012). 

In addressing a defendant’s reasonable expectation of 

privacy in a place searched, however, New Jersey jurisprudence 
30

diverges from federal law in significant respects.7 Unlike 

federal law, New Jersey law confers automatic standing on a

defendant “in cases where the defendant is charged with an 

offense in which possession of the seized evidence at the time 

of the contested search is an essential element of guilt.”

State v. Alston, 88 N.J. 211, 228 (1981). In settings such as 

this, where the defendant seeks to exclude evidence offered by 

the State in his or her trial for a possessory offense, the 

defendant’s standing to assert his or her rights under Article 

I, Paragraph 7 of the New Jersey Constitution is beyond dispute. 

Even when a defendant has automatic standing, if, as here, the 

merits rest on whether defendant possesses a reasonable 

expectation of privacy, the court must address that issue as 

part of the substantive constitutional analysis. That inquiry 

is separate and distinct from the question of standing. See, 

e.g., State v. Harris, 211 N.J. 566, 589-90 (2012) (considering 

and rejecting defendant’s argument that he had reasonable 

expectation of privacy in firearm serial numbers entered by 

officers into National Crime Information Center database); State 

v. Stott, 171 N.J. 343, 355, 357-58 (2002) (determining 

 

7 The federal and state constitutional protections are not in 

every respect coextensive; this Court has interpreted Article I, 

Paragraph 7 of our State Constitution to provide protections 

beyond those afforded by the Fourth Amendment. See, e.g., 

Hempele, supra, 120 N.J. at 195; State v. Mollica, 114 N.J. 329, 

344 (1989).
31

involuntary patient at hospital had reasonable expectation of 

privacy in his shared room); Hempele, supra, 120 N.J. at 200, 

215 (finding persons have reasonable expectation of privacy in 

contents of opaque trash bags left at curb for collection); 

State v. Harris, 298 N.J. Super. 478, 484-85 (App. Div.)

(holding defendant who forcefully intruded into another’s

apartment had no reasonable privacy interest in premises as 

recognized by general societal norms), certif. denied, 151 N.J.

74 (1997).

As this Court has noted, “[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.” State v. Johnson, 193 N.J. 528, 

547 (2008) (citing State v. McAllister, 184 N.J. 17, 32-33, 36 

(2005); Hempele, supra, 120 N.J. at 198-200)). While defendant

has automatic standing under Alston to seek suppression, in this 

case we must nonetheless determine whether he had a reasonable 

expectation of privacy in the premises –- as a substantive 

matter of law – as part of the inquiry as to whether an unlawful 

search occurred. Johnson, supra, 193 N.J. at 547. 

Advancing an argument not made by defendant or the ACLU, 

our dissenting colleague asserts that our holding contravenes 

Alston and Johnson, by imposing what he characterizes as “an 
32

extra layer of standing – a reasonable expectation of privacy 

analysis” – upon this Court’s jurisprudence. Post at ____ (slip 

op. at 4-7). Our colleague’s contention is unfounded. We apply 

the standing rule of Alston, in which the Court confirmed that a 

defendant has automatic standing to object to the admission of 

seized evidence if he or she is charged with an offense in which 

possession of that evidence is an essential element. 88 N.J. at 

228. As the Court noted in Johnson, a defendant has automatic 

standing under Alston and its progeny –- and may accordingly 

seek suppression of evidence –- by virtue of the charge that he 

or she possessed the item seized, whether or not the defendant 

has a reasonable expectation of privacy in the area searched. 

Johnson, supra, 193 N.J. at 545 (citations omitted). 

A defendant’s automatic standing to file a motion to 

suppress, however, does not equate to a finding that he or she 

has a substantive right of privacy in the place searched that 

mandates the grant of that motion. Id. at 547, citing 

McAllister, supra, 184 N.J. at 32-33, 36; Hempele, supra, 120 

N.J. at 198-200. Defendant’s standing to seek suppression of 

evidence in the trial of a possessory offense, and the existence 

of a reasonable expectation of privacy –- relevant not to 

standing but to the merits of the suppression motion –- are 
33

separate issues.8 Here, we recognize defendant’s automatic 

standing under Alston to seek suppression of the heroin and 

currency seized by police officers. We determine, however, that 

he lacked “a substantive right of privacy in [the] place 

searched” within the meaning of Johnson, supra, 193 N.J. at 547. 

This is not a typical case in which a defendant seeks 

suppression of items found in his or her home. Instead, this 

novel case arises in unusual circumstances, in which we consider 

the reasonable expectation of privacy in the setting of an 

eviction that has proceeded to an advanced stage. Our holding

thus comports with the jurisprudence cited by the dissent, which 

overstates the reach of our prior case law. 

Unlike the federal test, the New Jersey constitutional 

standard does not require the defendant to prove a subjective 

expectation of privacy. In Hempele, supra, 120 N.J. at 198-99, 

this Court rejected the federal two-pronged analysis because it 

“entails an arbitrary distinction between facts that manifest a 

 

8 The distinction between the standing and substantive inquiries 

is illustrated by a defendant who claims he did not consent to a 

search that resulted in firearms charges, and who files a motion 

to suppress on that ground. Under Alston, by virtue of the 

possessory offense charged, such a defendant has automatic 

standing to proceed and challenge the search. Alston, 88 N.J.

at 228. The defendant’s standing, however, does not resolve the 

substantive issue to be decided by the court in the suppression 

hearing –- whether the State has demonstrated the defendant’s 

consent to the search. To prevail on the merits if the State 

has satisfied its burden, a defendant with automatic standing 

must still address the substantive inquiry –- whether he 

knowingly and voluntarily consented to a search.
34

subjective privacy expectation and those that indicate the 

reasonableness of the privacy expectation.” Instead, Article I, 

Paragraph 7 of the New Jersey Constitution “requires only that 

an expectation of privacy be reasonable.” Id. at 200. This 

streamlined inquiry governs suppression motions premised upon 

Article I, Paragraph 7 of our State Constitution. 

This Court and the Appellate Division have recognized 

circumstances in which no reasonable expectation of privacy can 

be found, notwithstanding the residential setting of the police 

activity. See, e.g., State v. Johnson, 171 N.J. 192, 209-10

(2002) (finding defendant had no reasonable expectation of 

privacy when officers observed contraband on porch of multifamily home used by other occupants and visitors); N.J. Dep’t of 

Envtl. Prot. V. Huber, 213 N.J. 338, 370 (2013) (holding private 

land owners cannot claim full expectation of privacy in lands 

subject to recorded deed restrictions); State v. Anglada, 144 

N.J. Super. 358, 360-61, 363 (App. Div. 1976) (holding defendant 

had no reasonable expectation of privacy when investigators were 

invited into home and observed evidence of marijuana). 

In other settings, our courts have found that a defendant 

does not have a reasonable expectation of privacy in a property 

that he or she occupies unlawfully. In State v. Perry, 124 N.J.

128, 133, 149 (1991), the Court considered the defendant’s 

challenge to the admission of drugs and paraphernalia seized in 
35

an apparently abandoned building that the defendant had entered 

to inject himself with drugs. In addition to citing the 

officers’ “unrelated, legitimate purpose” that brought them to 

view the contraband, the Court determined that defendant’s 

“expectation of privacy was not impinged,” observing:

[Defendant] was in a house, not his own, 

that appeared vacant and whose front door 

was not only unlocked but open. The open 

door, uncertain ownership, and vacant nature 

of the edifice create a situation far from 

unambiguous and make it difficult to give 

its transient user a constitutionallyreasonable expectation of privacy. 

Moreover, the evidence shows that 

defendant’s own subjective expectations were 

not thwarted by the officers’ entrance. He 

“expected” their arrival, wished to continue 

cooperating with them in the murder 

investigation, and did not object to them 

ascending the stairs once they entered and 

he saw them.

[Id. at 149-50 (citing Katz, supra, 389 

U.S. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d 

at 588 (Harlan, J., concurring)).]

The Appellate Division reached the same conclusion in State 

v. Linton, 356 N.J. Super. 255, 258-59 (App. Div. 2002). There, 

the defendant concealed drugs on the first and second floors of 

an “abandoned building in which [he] had no legal interest,” and 

police entered the property without a warrant and seized them.

Id. at 256. The Appellate Division reversed the trial court’s 

grant of a motion to suppress the evidence found on the first

floor. Ibid. The panel relied on Perry. Id. at 258. It 
36

explained that “the building was abandoned and defendant, at 

best a transient squatter, had no constitutionally-reasonable 

expectation of privacy.” Id. at 256.

The setting of this case is distinguishable from that of 

Perry and Linton. Here, defendant did not occupy a stranger’s 

abandoned premises but lived in his mother’s apartment while an 

eviction proceeding was pending. The courts deciding Perry and 

Linton, however, articulated a principle that is relevant to 

this case: that the objective reasonableness of the defendant’s 

expectation of privacy in that property, for purposes of Article 

I, Paragraph 7, turns in large part on his or her legal right to 

occupy the property at issue.

The significance of the defendant’s legal status with 

respect to a residence was underscored in State v. Mark, 46 N.J.

262, 264-65 (1966), in which this Court addressed a search by 

police officers in a room subject to a week-to-week tenancy that 

the defendant had not renewed. On the day that the defendant 

was moving out, while his belongings remained in the room but 

his key had been turned in, police searched his room to 

investigate the murder of another tenant and, after obtaining a 

warrant, seized items belonging to the defendant. Id. at 265-

66, 268. The Court did not expressly address the issue of 

whether the defendant in Mark had a reasonable expectation of 
37

privacy in his former home.9 In determining the propriety of the 

police entry into the defendant’s room, however, the Court 

considered that “when the search began on January 18, the 

tenancy of the defendant had already expired and the landlord 

had acquiesced in and approved the conduct of the officers.”

Id. at 274-75. Given the late stage of eviction process, the

Court in Mark held that the police conduct did not constitute an 

unreasonable search. Id. at 275-76. 

Here, we consider defendant’s legal interest in the 

apartment in determining, under State constitutional principles,

whether he had an objectively reasonable expectation of privacy 

on the relevant date. The three-day period between notice of 

the warrant of removal and execution of the warrant afforded the 

tenant an opportunity to vacate the premises. That three-day 

period expired on April 10, 2009. Thus, as of April 13, 2009, 

defendant had been on notice for a week that an eviction 

proceeding was pending and that it had reached a pivotal stage. 

Defendant was advised in the warrant of removal that while the 

apartment’s “tenant” remained in “legal possession” during the 

 

9 Mark was decided before Katz and Ciraolo’s adoption of the twopart test for a reasonable expectation of privacy for Fourth 

Amendment purposes and before this Court stated the New Jersey 

constitutional standard in Hempele. In Mark, this Court did not 

evaluate the facts before it in accordance with the analysis 

that we apply to this case but focused instead upon the 

reasonableness of the police conduct in light of the “particular 

facts presented.” Mark, supra, 46 N.J. at 275.
38

three-day notice period -– preventing the landlord from 

conducting a lockout -– this status would change at the end of 

the three days. The remedial action identified in the warrant 

of removal -– court intervention -– was neither sought nor 

obtained during the critical three-day period. If defendant 

somehow expected that his privacy in the apartment would be 

preserved at this late stage of the eviction, that expectation 

was unreasonable.10 Moreover, the potential for defendant to 

obtain a court remedy during the ten-day period following the 

execution of the warrant of removal and to seek appellate review 

does not give rise to a reasonable expectation of privacy

considering the landlord’s ability to enter and remove 

defendant’s possessions during that time. See N.J.S.A. 2A:18-72 

to -84. 

We hold, based upon the evidence adduced in the suppression 

hearing, that on the afternoon of April 13, 2009, defendant 

lacked an objectively reasonable expectation of privacy in the 

apartment where he had been living. Accordingly, the April 13, 

2009 police action in his apartment was not a “search” for 

purposes of either the Fourth Amendment of the United States 

 

10 In Maglies v. Estate of Guy, 193 N.J. 108, 126 (2007), this 

Court articulated a standard for determining whether an 

individual who was not the documented tenant could qualify as a 

functional co-tenant for purposes of search and seizure 

analysis. We need not apply that standard to defendant here. 

Even if defendant was a functional co-tenant under Maglies, any 

such status terminated at the end of the three-day period. 
39

Constitution or Article I, Paragraph 7 of the New Jersey 

Constitution. We reverse the Appellate Division’s determination 

with respect to this issue. 

VII.

Our holding that the police action did not constitute a 

search does not entirely resolve the question of whether the 

trial court properly denied defendant’s motion to suppress. In 

addition to contending that the police officers conducted an 

unlawful search of his apartment, defendant challenged the 

officers’ seizure of the disputed evidence in his motion before 

the trial court. On appeal, the constitutionality of the 

seizure was not addressed in detail by the parties or amicus. 

The Appellate Division did not separately address that issue. 

Neither this Court nor the Appellate Division has squarely 

addressed the standard by which a trial court should determine 

the constitutionality of a seizure of property that is 

discovered in a residence when no Fourth Amendment or Article I, 

Paragraph 7 search occurs.

We therefore remand this matter to the Appellate Division 

for a determination, after supplemental briefing by the parties 

and amicus, of the constitutionality of the police officers’ 

seizure of the evidence that was the subject of defendant’s 

motion to suppress. On remand, the Appellate Division should 

also consider the issues that it did not reach because of its 
40

reversal of the trial court’s denial of defendant’s motion to 

suppress.

VIII.

The judgment of the Appellate Division is reversed and the 

matter is remanded in accordance with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join 

in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a separate, 

dissenting opinion, in which JUDGE RODRÍGUEZ (temporarily 

assigned) joins. JUDGE CUFF (temporarily assigned) did not 

participate.
1

SUPREME COURT OF NEW JERSEY

A-3/4 September Term 2012

070386

STATE OF NEW JERSEY,

Plaintiff-Appellant 

and Cross-Respondent,

v.

GENE HINTON,

Defendant-Respondent 

and Cross-Appellant.

JUSTICE ALBIN, dissenting.

Today’s decision weakens more than three decades of this 

Court’s standing jurisprudence under Article 1, Paragraph 7 of 

the New Jersey Constitution. Before today, if a person had a 

possessory, proprietary, or participatory interest in a place 

called home, that person had standing to object to an unlawful 

search of the premises and that person’s reasonable expectation 

of privacy would not be an issue. Now, in disregard of the 

precise dictates of this Court’s decisions in State v. Alston, 

88 N.J. 211, 227 (1981) and State v. Johnson, 193 N.J. 528, 546 

(2008), and our general standing jurisprudence, the majority 

insists that even when a defendant has standing to object to a 

search of his home, the court must determine whether he had a

reasonable expectation of privacy in the premises. See slip op. 

at 30. 
2

In Alston, supra, and Johnson, supra, we rejected the 

notion that a defendant with standing to object to a search 

under state law must clear “another layer of standing” based in 

federal jurisprudence -- that is, have a court find that he had 

a reasonable expectation of privacy. Johnson, supra, 193 N.J.

at 546. The majority does here exactly what we said we would 

not do in Alston and Johnson. For the first time, this Court 

finds that a defendant has standing -- a possessory or 

proprietary interest in the place searched -- only to declare 

that the defendant has no reasonable expectation of privacy in 

the place searched. Not only does this formulation contravene 

our case law, but it could confound practitioners and judges if 

expanded beyond the novel scenario in this case. Because this 

departure from our law is unwarranted, I respectfully dissent. 

I.

Defendant Gene Hinton lived at 130 Dayton Street, Apartment 

8K, in Newark for six years before the police searched his 

apartment on April 13, 2009. Hinton’s mother, Essie, who died 

on March 14, 2009, was the leaseholder of the apartment. 

Although Essie’s name was the only one on the lease, it seems 

that both the building superintendent and the building manager 

knew that Hinton resided with his mother. Arguably, the New 

Jersey Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12,
3

provided Hinton with a basis to remain on the premises, even 

after his mother’s death. See Maglies v. Estate of Guy, 193 

N.J. 108, 112 (2007) (prohibiting “the causeless eviction of a 

daughter, after the death of her mother, where the landlord 

consented to the daughter’s residence and where the daughter’s 

income factored into the family contribution and federal voucher 

subsidy paid to the landlord”).

Apparently unaware of Essie’s death, the landlord, the 

Newark Housing Authority, initiated an eviction action for 

nonpayment of rent. On March 31, 2009, a Superior Court judge 

issued a warrant directing a Special Civil Part Officer to 

remove the tenant -- Essie -- and her property from the 

premises. On April 6, the Special Civil Part Officer placed the 

warrant of removal under the door of the apartment. The warrant 

gave “Ms. Hinton” 72 hours to vacate the apartment or seek 

judicial relief. 

Under the New Jersey Anti-Eviction Act, the “Special Civil 

Part shall retain jurisdiction for a period of 10 days 

subsequent to the actual execution of the warrant for possession 

for the purpose of hearing applications by the tenant for lawful 

relief.” N.J.S.A. 2A:42-10.16(e). Here, the Special Civil Part 

Officer executed the removal on April 13 when he took account of 

the property in the apartment and changed the lock on the door. 
4

Hinton had ten days from that point to seek judicial relief from 

the lockout. 

As he was conducting the lockout, the Special Civil Part 

Officer observed what he believed to be illegal drugs in a 

bedroom. He properly reported his observations to the Newark 

Police Department. No one disputes that those observations 

provided probable cause to conduct a search. The only question 

is whether Hinton has the right to challenge the warrantless 

entry of the apartment by Newark police officers. 

The majority concedes that Hinton has standing to challenge 

the search -- that is, he has a possessory, proprietary, or 

participatory interest in the apartment. Nevertheless, the 

majority contends that Hinton did not have a reasonable 

expectation of privacy in the premises. The majority imposes an 

extra layer of standing -– a reasonable expectation of privacy 

analysis -- when we have instructed courts not to do so. That 

is clear from the seminal case guiding our standing 

jurisprudence, State v. Alston, supra, to which I now turn.

II.

A.

In State v. Alston, the Court articulated the governing 

principles for standing in cases in which a defendant claims a 

search or seizure violates Article 1, paragraph 7 of the New 
5

Jersey State Constitution. In doing so, this Court parted with 

the United States Supreme Court’s newly minted standing 

jurisprudence in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 

58 L. Ed. 2d 387 (1978), and United States v. Salvucci, 448 U.S.

83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), jurisprudence 

which requires a person to have a reasonable expectation of 

privacy in the place searched or the thing seized to make a 

challenge under the Fourth Amendment. See Alston, supra, 88 

N.J. at 226. In Alston, we specifically rejected “the amorphous 

‘legitimate expectations of privacy in the area searched’

standard as applied in Rakas, Salvucci and Rawlings,”

1 and 

“retain[ed] the rule of standing traditionally applied in New 

Jersey, namely, that a criminal defendant is entitled 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.” 

Id. at 228. The Court came to this conclusion because this rule 

of standing is “more consonant with our own interpretation of 

the plain meaning of Article 1, paragraph 7 of our State 

Constitution.” Id. at 227.

“Following Alston, our courts have consistently applied the 

automatic standing rule to defendants charged with possessory 

 

1 Alston, supra, uses the terms “reasonable” and “legitimate” 

expectation of privacy interchangeably. See, e.g., 88 N.J. at 

218.
6

offenses, regardless of whether they had an expectation of 

privacy in the area searched.” Johnson, supra, 193 N.J. at 545 

(emphasis added). In Johnson, we gave examples, such as State 

v. Miller, 342 N.J. Super. 474, 478 (App. Div. 2001), in which 

the defendant had standing to challenge the search of a home 

where he was visiting but where he did not reside, and State v. 

De La Paz, 337 N.J. Super. 181, 193-95 (App. Div.), certif. 

denied, 168 N.J. 295 (2001), in which the defendant had standing 

to challenge the warrantless entry of a home where he was a

guest. Johnson, supra, 193 N.J. at 545. 

In Johnson, the State argued, as it does here, that 

“without having a reasonable expectation of privacy in the thing 

searched or item seized, defendant cannot make out a[n] . . .

Article I, Paragraph 7 violation.” Id. at 546. We rejected 

that argument. Ibid. We refused to “place[] another layer of 

standing -- [‘a reasonable expectation of privacy’ analysis] --

on top of our automatic standing rule.” Ibid. We made crystal 

clear that “we do not use a reasonable expectation of privacy 

analysis for standing purposes in criminal cases” -- with one 

caveat. Id. at 547. We recognized in Johnson that in novel 

cases we would have to “determine whether an individual 

possesses a substantive right of privacy in a class of objects 

or a general place.” Ibid. (emphasis added). For example, by 

determining that people have a reasonable expectation of privacy 
7

in their bank records, see State v. McAllister, 184 N.J. 17, 32-

33 (2005), we signaled that our standing jurisprudence will 

apply to those records. However, there is nothing novel about 

the constitutional protections afforded to the home. 

“[T]raditional notions of standing” apply to the home, and 

therefore the question here is whether Hinton had a possessory, 

proprietary, or participatory interest in the apartment 

searched. See Johnson, supra, 193 N.J. at 547. 

B.

The majority is mistaken in suggesting that, because Hinton 

is charged with a possessory offense, only principles of 

automatic standing apply in this case. Hinton had the right to 

assert that he had general standing to object to the search of 

his apartment. See generally 32 New Jersey Practice, Criminal 

Practrice and Procedure § 16:33 (Leonard N. Arnold) (2011). At 

the motion to suppress hearing, no one questioned whether Hinton 

had standing to challenge the search. No one questioned whether 

he had a reasonable expectation of privacy in the premises. The 

trial court apparently accepted that Hinton had standing and 

determined that the Newark police officers had a constitutional 

basis to conduct a warrantless search of the apartment. This 

Court has never before found that a defendant had standing to 

object to the search of a place and then turned to whether that 
8

defendant had a reasonable expectation of privacy in the place 

searched. 

The majority refers to cases of a “transient user” and a 

“transient squatter” in abandoned buildings, slip op. at 35–36,-

- cases in no way comparable to the present one in which a son 

lived with his mother in an apartment for six years with the 

almost certain knowledge of the building superintendent. 

Perhaps more significantly, the majority ignores that this Court 

recently said that “in a challenge to a search or seizure,” the 

“‘reasonable expectation of privacy’ standard” is not the 

standard when determining “whether property is abandoned.” 

Johnson, supra, 193 N.J. at 549 n.5.

In overruling the Appellate Division and denying Hinton’s 

motion to suppress, the majority discards core principles that 

guide our automatic standing jurisprudence. The majority has 

forgotten that “[o]ur possessory, proprietary and participatory 

standing analysis not only incorporates the notion of a 

reasonable expectation of privacy, but also advances other 

important state interests.” Ibid. One of those interests is 

that “by allowing a defendant broader standing to challenge 

evidence derived from unreasonable searches and seizures under 

our State Constitution, we increase the privacy rights of all 

New Jersey’s citizens and encourage law enforcement officials to 
9

honor fundamental constitutional principles.” Ibid. (citing 

Alston, supra, 88 N.J. at 226 n.8).

These juridical principles are overlooked in the majority 

opinion.

III.

The police officers in this case searched an apartment 

without a warrant and without ever seeking the consent of the 

owner or leaseholder of that dwelling. They did not even seek 

out an agent of the Newark Housing Authority for authorization 

to breach the threshold of Hinton’s home. No one suggests that 

the officers had exigent circumstances to justify the 

warrantless search in this case. The real question is whether 

Hinton had a possessory, proprietary, or participatory interest 

in the apartment -- and in the property of that apartment --

that allows him to challenge the search. He was not a transient 

guest or visitor but a resident of the apartment for six years, 

and he was charged with a possessory offense, which ordinarily 

triggers automatic standing. See Alston, supra, 88 N.J. at 228. 

Even after the Special Civil Part Officer executed the warrant 

of removal and changed the locks on the apartment, for a period 

of ten days, Hinton had a statutory right to seek judicial 

relief. N.J.S.A. 2A:42-10.16(e). Hinton therefore retained a 

possessory or proprietary interest, and even a reasonable 
10

expectation of privacy, in his home. Whether under our 

traditional standing principles or under the ones now created by 

the majority, Hinton had a right to challenge the search in this 

case.

IV. 

In weakening the standing jurisprudence for searches and 

seizures under Article 1, Paragraph 7 of our State Constitution 

in the case of Gene Hinton, the majority takes a step toward 

eroding “the privacy rights of all New Jersey’s citizens” and 

forgoes sending a signal to “encourage law enforcement officials 

to honor fundamental constitutional principles.” Johnson, 

supra, 193 N.J. at 543. Although the majority’s misreading of 

our standing jurisprudence could sow confusion in the ranks of 

our trial courts, there is hope that the damage done here will 

be limited to the “unusual” facts of this case, which the 

majority characterizes as “novel.” Slip op. at 33.

For the reasons expressed, I respectfully dissent.

JUDGE RODRÍGUEZ (temporarily assigned) joins in this 

opinion.
1

 SUPREME COURT OF NEW JERSEY

NO. A-3/4 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant

and Cross-Respondent,

v.

GENE HINTON,

Defendant-Respondent

and Cross-Appellant.

DECIDED October 24, 2013

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY Justice Albin

CHECKLIST REVERSE AND 

REMAND AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE HOENS X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) ------------------------ -------------------

TOTALS 4 2