SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 3984
- 14T1 STATE OF NEW JERSEY, Plaintif f
- Respondent,

v. JUAN D. OSBORNE, Defendant
- Appellant.

_________________________________

Submitted May 8, 2017

– Decided May 24, 2017 Before Judges Nugent and Currier. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13
- 05
- 0740 . Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).
PER CURIAM After losing a suppression motion, d efendant Juan D. Osborne pleaded guilty to third

- degree possession o f a controlled NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited . R .1:36
- 3.2 A - 3984
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dangerous substance (CDS), heroin , and a judge sentenced him to probation for one year . On appeal, defendant raises a single argument:

ONCE THE POLICE, WHO WERE EXECUTING A WARRANT

TO SEARCH A PARTICULAR APARTMENT, REALIZED OR SHOULD HAVE REALIZED THAT THEY WERE IN A BASEMENT THAT WAS SHARED WITH OTHER TENANTS, THEY ACTED UNREASONABLY IN SEARCHING THERE BECAUSE THEY LACKED PROBABLE CAUSE TO BELIEVE THAT ANY ITEM THEY DISCOVERED WAS THE DEFENDANT'S. For the reasons that follow, we affirm. In May 2013, a Monmouth County grand jury charged defendant in an indictment with five CDS offenses, including third

- degree possession of heroin, N.J.S.A. 2C:35
- 10(a)(1). Following the indictment, defendant moved to suppress thirty bags of heroin police seized from the basement of the apartment house where he lived. T he trial court denied the motion. Thereafter, d efendant agreed to plead guilty to third

- degree possession of heroin in exchange for the State recommending a non - custodial sentence and dism issing the indictment's remaining counts. The court sentenced
defendant accordingly and imposed appropriate fines and penalties. Defendant appealed from the denial of his suppression motion . P olice conducted the search of defendant's apartment and the
ba sement of the apartment building af ter obtaining a search warrant. Defendant does not dispute the warrant was lawfully3 A - 3984
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issued , n or does he challenge the search of his apartment. Rather, he challenges the search and seizure of CDS from the apartment build ing's basement.

D efendant lived in "Apartment #1" of an Asbury Park multi

family dwelling . The warrant describe d the building and defendant's residence as:

A three story, multiple family dwelling with yellow siding, white trim around the windows and doors , and a charcoal gray shingled roof. To the right of the center of the front of the house is a gray staircase with a gray railing leading to a porch. To the right of the stairs is a white column supporting the porch roof. On the white column are the num bers "512" written in black. There are two doors accessed from the porch, one directly in front of the stairs and the other on the left end of the porch. To the left of the main door are two mailboxes black in color. To the left of the building is a con crete driveway that warps around to a parking area. In the middle of the back of the building is a white door which accesses apartment #1[.] The warrant authorized the search of "the residence hereinabove

named including the curtilage and the shed." During the hearing on defendant's suppression motion, Monmouth County Prosecutor's Detective Keith Finkelstein testified that on January 23, 2013, he and other law enforcement officers arrived at defendant's res idence to execute the warrant. Detective Fin kelstein described the residence as a "three

- story house with4 A - 3984
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yellow siding" and noted the door to Apartment #1 was in the rear
of the home. Detective Finkelstein went to the rear of the house and knocked on defendant's apartment door, but received no an swer. The detective checked the knob, noticed the door was unlocked, and entered the home. Upon entering the residence, Detective Finkelstein noticed a series of hallways providing access to a
small bedroom, bathroom, living room and kitchen. Inside the kitchen was an unlocked door providing access to the basement. Detective Finkelstein opened the basement door and observed a "tiny landing in the stairs leading to the basement." The detective believed the basement was part of Apartment #1 because it wa s accessible from that apartment. The detective searched the basement and seized thirty bags of suspected he roin inside a red utility lamp. According to Detective Finkelstein, the basement had two doors: the one providing access to the basement from def endant's apartment, and another leading to the exterior driveway. The door leading to the exterior driveway was secured by an exterior padlock. In addition to Detective Finkelstein, t he State presented the testimony of the building's landlord. The land lord explained that the building was a "modified single family home" with three5 A - 3984
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separate apartments, all of which were occupied on the date of the
search. He further explained that the basement , which spanned the entire building, is accessible only by two doors

— one from the kitchen of Apartment #1 and the other from an exterior door to the backyard, padlocked from the outside. The building's tenants had key s to the exterior padlocked door so they could check their fuse
boxes. T he landlord also testifie d that he and the other tenants
store d some of their belongings in the basement. According to the
landlord , the basement was a shared space; no tenant could place something in the basement that " would be protected from access
from the other tenants."
Th e trial court found the testimony of both witnesses "straightforward and credible" and denied the motion. In an oral opinion delivered from the bench, the court found the tenants had a diminished expectation of privacy in the basement "based on the
fact t hat [they all] had access to" the items stored therein. T he
court found the search of the basement was within the warrant 's
scope. On appeal, defendant argues police unlawfully searched the basement "[b]ecause the police could not tell whose items were whose" and thus "lacked probable cause to believe that any particular items belonged to [defendant]." Defendant contends it was not objectively reasonable for Detective Finkelstein to6 A - 3984
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believe that only defendant had access to the ba sement, particularly in view of the landlord's testimony that the basement spanned the entire building. For these reasons, defendant argues the police should have contacted a judge by telephone to obtain a
warrant for the basement or contacted the other t enants in the building to have them identify their belongings. We review a decision on a motion to suppress evidence by "accord[ing] deference to the fact ual findings of the trial court[.]" State v. Scriven , 226 N.J. 20, 32 (2016) (citation omitted) . Our review of a trial court's legal conclusions is plenary. State v. Rockford , 213 N.J. 424, 440 (2013) (citations omitted).

T he Fourth Amendment to t he Federal Constitution and Article I, Paragraph 7 of the New Jersey Constitution require that a searc h warrant "particularly" describe the area to be searched . U.S.
Const. amend. IV; N.J. Const. art. I, ¶ 7. Although "pin

- point precision" is not required, a warrant must describe the premises
to be searched with reasonable accuracy. State v. Wright , 61 N.J. 146, 149 (1972) (citations omitted) . Stated another way, t he description of the premises requires no more than "practical accuracy." State v. Daniels , 46 N.J. 428, 437 (1966). "[O]fficers searching a person's home . . . under authority
of a search warrant are authorized to use only those investigatory7 A - 3984
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methods, and to search only those places, appropriate in light of the scope of the warrant." State v. Reldan , 100 N.J. 187, 195 (1985) ( citing Harris v. United States , 331 U.S. 145, 152, 67 S.
Ct. 1098, 1102, 91 L. Ed. 1399 , 1407 (1947)). F or these reasons, "[a]n analysis of the reasonableness of the methods used in a search, as well as the areas searched, should focus upon whether the search in its totality was consistent with the object of t he
search." Ibid. In this regard, "certain 'structures have been deemed appurtenant to the premises specified in the search warrant, though not physically . . . under the purview of the warrant.'" Wayne R. LaFave, Search and Seizure

– A Treatise on the Fourth Amendment , § 4.10(a) at 940 ( 5th ed . 2012) (quoting United States v. Fagan , 577 F. 3d 10 , 13 (1st Cir. 2009) , cert. denied , Fagan v. United
States , 559 U.S. 958, 130 S. Ct. 1556, 176 L. Ed. 2d 144 (2010) ). "Structures that have been found to be appurtenant to described residential premises include storage closets, cabinets, storage rooms and bins, lockers, mailboxes, and birdhouses." Id. at 941. Fagan involved a motion to suppress evidence seized from a storage closet by officers executing a search warrant for the neighboring apartment. Supra , 577 F. 3d at 12. T he court noted "[t]he Warrant Clause of the Fourth Amendment has been interpreted to permit searches not only of the premises specified in a warr a nt8 A - 3984
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but also of structures 'appurtenant' to those premises." Id. at 11. Explaining that "case law . . . provides very little guidance as to how courts should determine whether or not a given structure is appurtenant to described premises [ , ] " the court de termined

the standard to be applied is one of objective reasonableness. So long as the officers executing the warrant have an objectively reasonable basis, in light of the known characteristics of the location and the evidence at hand, for concluding tha t a structure is appurtenant to the premises specified in the search warrant, that structure may validly be searched under the purview of the warrant. [ Id. at 13 (citation omitted) .] The court noted case law provided "guide posts" for courts determining "[w] hether a searching officer reasonably could conclude that a specific structure is appurtenant to the premises specified in a particular search warrant ." Id. at 14.

These include the proximity of the structure to the described premises, see [ United S tates v. Ware , 890 F. 2d 1008, 1011 (8th Cir. 1989) ] (holding that a storage room next to an apartment was "near enough to alert the searching officers that it was an appurtenance of the apartment"); the location's layout and the context
- specific relationsh ip between the structure and the premises specified in the warrant, see [ United States v. Principe , 499 F. 2d 1135, 1137 (1st Cir. 1974) ] ; and extrinsic evidence, including evidence discovered during admittedly valid portions of the search, suggesting that the structure is appurtenant to the premises specified in the warrant, see Ware , [ supra ,] 890 F. 2d at 10119 A - 3984
- 14T1 (observing that the defendant's key ring included keys to a storage room deemed appurtenant to the premises specified in the warrant). [ Ibid. ] Here, the officers who searched defendant's apartment could reasonably conclude the basement was appurtenant to the apartment. Defendant had immediate and unfettered access to the basement through an unlocked door in his apartment , which opened directly i nto the basement stairway. The only other means of ingress and egress to the basement was an exterior padlocked door. Thus, it appeared defendant had primary, if not exclusive, access to the basement connected to his apartment . Neither of the other two units in the building had a door leading to the basement. Under these circumstances, the trial court did not err by concluding the search of the basement did not exceed the scope of the warrant. The trial court also concluded defendant had a diminished

e xpectation of privacy in the basement because, as the landlord testified, the landlord and the other tenants had access to the basement to check fuse boxes and for storage. Defendant argues the trial court erred by finding the search was lawful in view of defendant's diminished expectation of privacy. We have held in a somewhat different context

— a superintendent of a multi

- story, multi

- unit apartment complex10 A - 3984
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giving consent to law enforcement officers to search a locked room in the building's basement u se d to store recycling material, to which the superintendent, the defendant, and one other person had keys

— " a worker sharing locked work space cannot reasonably have an expectation of privacy where other workmen have access to the same work space. " State v. Brown , 282 N.J. Super. 538, 547 (App. Div.), certif. denied , 143 N.J. 322 (1995). We further noted " a tenant does not have a reasonable expectation of privacy in the common areas of a building merely because doors to the common areas are normally kept locked and require a key for access. " Id. at 547 ( citing United States v. Concepcion , 942 F. 2d 1170, 1171
- 72 (7th Cir. 1991 )) . C f. , State v. Saez , 268 N.J. Super. 250, 261 (App. Div. 1993) (holding the defendants had a reasonable expectation of privacy in their part of the basement partitioned off from the adjoining resident's part of the basement by a poor ly constructed wooden wall that had holes or gaps through w hich law enforcement officers could observe drug activity), rev'd on other grounds , 139 N.J. 279, 280 (1995). Here, whether defendant had a reasonable expectation of privacy in the basement is irrelevant, because the search of the basement was within the scope of the search warrant. No principle of New Jersey Constitutional law is inconsistent with the Fourth Amendment jurisprudential principle that appurtenances may be11 A - 3984
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searched under the authority of a warrant issued for a particular residence.
We h ave considered d efendant's remaining arguments and found
them to be without sufficient merit to warrant further discussion.

R. 2:11
- 3(e)( 2) . Affirmed.