SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3538- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. SHAWN BAXLEY, Defendant-Appellant.

_______________________

Argued April 23, 2024

– Decided May 1, 202 4 Before Judges Enright and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 21- 08

- 0662. Margaret Ruth McLane, Assistant Deputy Public Defender , argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Margare t Ruth McLane, of counsel and on the briefs). Deborah Cronin Bartolomey, Deputy Attorney General , argued the cause for respondent (Matthew J. Platkin , Attorney General, attorney; Deborah Cronin Bartolomey, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3538

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PER CURIAM Defendant Shawn Baxley appeals from a May 19, 2022 order denying h is motion to suppress a weapon seized without a warran t. We affirm.

I.

We summarize the facts from the motion record. On the night of April 5, 2021, Detective Anthony Cancel responded to a repor t of a shooting in Jersey City near Lexington Avenue and John F. Kennedy Boul evard. When he arrived on the scene, the detective learned two female vict ims were struck by gunfire during the incident and taken from the scene by amb ulance. Upon further investigation, he found shell casings in the area.

Detective Cancel canvassed the area and was able to recover two

su rveillance videos from the shooting incident. When he reviewed the footage approximately twenty to thirty minutes after the sh ooting, he noted one of the videos depicted a person in a dark-colored Audi sed an stop on Lexington Avenue, exit the vehicle, and engage in a verbal dispute w ith another individual before exchanging several rounds of gunfire

. The video also showed the Audi driver run into what appeared to be an alley betwee n 57 and 61 Lexington3 A- 3538

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Avenue, 1 and exit the alley shortly thereafter. The Audi d river then got back

into the Audi and left the scene. Detective Cancel went to the area on Lexington Aven ue that was shown

on the video, and inspected the location where the Aud i driver was seen exiting the alley. The detective " look [ed] for a firearm that was possibly . . . discarde d by " the suspected shooter. Cancel determined the alley was actually the driveway of

a home on 61 Lexington Avenue. While at that location, Canc el recovered additional shell casings. He also knocked on the doors of homes at 57, 60, and 61 Lexington Avenue to speak with anyon e there, based on his belief the Audi driver "may have discarded the firearm" in one of those locations. No one answered the door at 61 Lexington Avenue. B ut because the driveway to the property was fully accessible, no s igns were posted instructing the public to keep away, and the gate to the backya rd was open, Cancel briefly inspected the driveway and rear yard of th is property. Finding no evidence of a

firearm , Cancel then spotted a low garage "the next yard ove r," at 63 Lexington Avenue. Based on his suspicion the fleeing shooter may have discarded a

firearm on the roof of th at garage, Cancel spoke to a female occupant of the

1 As the motion judge noted in his written opinion, "there is no 59 Lexington Avenue" and "57 and 61 [Lexington Avenue] are adjac ent properties."4 A- 3538

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home at 57 Lexington Avenue and asked to use her deck "to see the top of the roof of the low garage . . . next door to 61 [Lexin gton Avenue]." She consented. While on the deck at 57 Lexington Avenue, Cancel us ed a flashlight to illuminate the silver roof top of the garage on 63 Lexington Avenue. He immediately saw "a black object in the middle of th e roof," and believed it

"could have been a . . . discarded firearm." Cance l saw no other items on the

roof. After leaving the deck, Cancel "climbed on[to a] lo w fence" next to the garage at 63 Lexington Avenue to secure a better "vantage point" for viewing the top of the roof. At that point, it became "mor e apparent" to Cancel that the black object on the roof "was a firearm." Detective Kevin Lowry of the Jersey City Cease Fire Unit then recovered the firearm fro m the roof by climbing a ladder he found at "the rear of 61 Lexington" Avenu e. The police subsequently determined from surveillanc e footage that the Audi captured on video from the night of the shooting was registere d to defendant. Accordingly, they arrested him as a suspect in the incident. In August 2021, defendant was charged under Hudson Cou nty Indictment

No. 21- 08

- 0662 with : first-degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:11-3(a)(2); two counts of second-degree aggravated assault,5 A- 3538

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N.J.S.A. 2C:12-1(b)(1); second-degree unlawful poss ession of a handgun with a defaced serial number, N.J.S.A. 2C:39-5(b)(1); second- degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a )(1); and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d ). The next month, he moved to suppress the firearm recovered from 63 Lex ington Avenue. The trial court conducted an evidentiary hearing on the suppression motion in February 2022. The State called Detectiv es Cancel and Lowry to testify. Each detective describ ed his involvement with the investigation of the April 5, 2021 shooting incident and the recovery of the fire arm from 63 Lexington Avenue. The State also played and moved into evidence the surveillance footage Detective Cancel recovered fro m the incident. Elizabeth Harley, the owner of 61 Lexington Avenue and defendant's aunt , testified for the defense. She stated that although she never lived at 61 Lexington Avenue, she inherited the property from h er deceased mother a few months before the shooting incident. Harley also t estified she was not at 61 Lexington Avenue when the shooting occurred, and was unaw are if anyone else was there that night. Further, she testified no on e had permission to enter this property, but admitted the gate on property "was always open." Harley also6 A- 3538

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denied keeping a ladder at the property and denied that the ladder the police used to retrieve the firearm from 63 Lexington Avenue wa s hers. On May 19, 2022, the trial court entered an order d enying the suppression motion. In a written opinion accompanying the order, the judge initially found defendant had standing to "challenge the recovery o f the handgun he [wa]s charged with possessing." Regarding whether the search and seizure of the gun from 63 Lexington

Avenue was lawful , the judge found that because "Detective Cancel was on the deck of 57 Lexington Avenue with the occupant's con sent" when he saw the gun, the detective "had a right to be in th[at] location ." Further, the judge concluded "the driveway and backyard of 61 Lexington Avenue c onstitute[d] a semiprivate area of that home's curtilage." 2 The judge explained, "[b]oth areas [we]re

2 "Certain lands adjacent to a dwelling called the 'curtilage' have always been viewed as falling within the coverage of the Fourth Amendment." 1 Wayne R. LaFave, Search and Seizure § 2.3(f) (3d ed. 1996). Whether a part of the curtilage is afforded Fourth Amendment protection d epends on "the proximity of the area . . . to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to whi ch the area is put, and the steps taken by the resident to protect the area fro m observation by people passing by." United States v. Dunn, 480 U.S. 294, 301 (198 7). It is also well established that a portion of the curtilage, being the normal route of

access for anyone visiting the premises, is "only a semi-7 A- 3538

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adjacent to the home," and "the resident [] of 61 Lexington Avenue took minimal steps to protect the area from public access." Further, the judge found "[t]he gate across the driveway" at 61 Lexington Avenue "w as left open on a regular basis, and there were no signs indicating that visi tors or other members of the public should keep off that portion of the property ." Based on Detective Cancel's testimony, the judge al so determined the detective had probable cause to believe the gun he saw in plain view "relate[d] to criminal activity," considering the detective "s tated multiple times throughout his testimony that he went into the alleyway and on to the deck of 57 Lexington Avenue in search of a discarded firearm," and "[h]e undertook these steps shortly after a shooting was captured on camera and an indi vidual was seen running into the alleyway at issue and exiting the same alleyway a few seconds later."

private area." . . . Thus, when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movemen ts to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. [LaFave, § 2.3(f) (footnotes omitted) (quoting Unit ed States v. Magana, 512 F.2d 1169 (9th Cir. 1975)).]8 A- 3538

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Accordingly, the judge found "Detective Cancel had more than enough reason to believe that the object was a discarded firearm. " The judge added, "[t]hough Detective Cancel's suspicion that the object was a firearm was ultimately correct, our case law does not require absolute cer tainty in an officer's determination that an object in plain view is, in f act, evidence of a crime." The judge also found:

Detective Cancel possessed sufficient probable caus e at the time of [his] observation to believe that the b lack object seen on the roof was a gun. As the criminal nature of the object was immediately apparent to Detective Cancel, the plain view exception to the warrant requirement justified officers' seizure of the gun, and no constitutional violation occurred warranting suppression in this case. In April 2023, defendant pled guilty to the second -degree charge of possession of a firearm for an unlawful purpose. Two months later, the judge sentenced defendant to a five-year prison term, sub ject to a forty- two -month period of parole ineligibility. The judge entered a conforming judgment of conviction (JOC) on June 20, 2023. 3

3 The parties agree the JOC should be amended to reflect the judge found aggravating factor nine (need to deter), N.J.S.A. 2 C:44-1(a)(9), at sentencing, not aggravating factor seven (defendant committed the offense pursuant to an agreement involving a pecuniary incentive), N.J.S.A . 2C:44-1(a)(7), as shown on the existing JOC

. Accordingly, we remand this matter solely to allow the trial court to amend the JOC to correct the clerical error.9 A- 3538

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On appeal, defendant raises the following argument for our consideration:

POINT I

THE EVIDENCE MUST BE SUPPRESSED BECAUSE NO VALID EXCEPTION TO THE WARRANT REQUIREMENT ALLOWED POLICE TO ENTER PRIVATE PROPERTY TO RETRIEVE THE GUN. Our scope of review of a decision on a motion to su ppress is limited. State v. Ahmad, 246 N.J. 592, 609 (2021); State v. Nelson , 237 N.J. 540, 551 (2019); State v. Boone, 232 N.J. 417, 425- 26 (2017); State v. Robinson, 200 N.J. 1, 15 (2009). "Generally, on appellate review, a trial c ourt's factual findings in support of granting or denying a motion to suppress must be upheld when those findings are supported by sufficient credible evide nce in the record." State v. A.M., 237 N.J. 384, 395 (2019) (quoting State v. S. S., 229 N.J. 360, 374 (2017)). We give deference to those factual findings in reco gnition of the trial court's "opportunity to hear and see the witnesses and to h ave the 'feel' of the case, which a reviewing court cannot enjoy." State v. El ders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson , 42 N.J. 146, 161 ( 1964 ))

. Thus, "[ w]e ordinarily will not disturb the trial court's f actual findings unless they are 'so clearly mistaken that the inter ests of justice demand10 A- 3538

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intervention and correction.'" State v. Goldsmith, 251 N.J. 384, 398 (2022) (quoting State v. Gamble, 218 N.J. 412, 425 (2014)) . However, legal

conclusions to be drawn from those facts are review ed de novo. State v. Radel , 249 N.J. 469, 493 (2022); State v. Hubbard, 222 N.J . 249, 263 (2015).

Both the Fourth Amendment of the Federal Constituti on and Article I, Paragraph 7 of our State Constitution protect "agai nst unreasonable searches and seizures" and prohibit the issuance of warrants in the absence of probable cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7; see also State v. Robinson, 228 N.J. 529, 543-44 (2017). "[S]earches and seizures conducted without warrants issued upon probable cause are presumptively unreas onable and therefore invalid." Goldsmith, 251 N.J. at 398 (quoting Elders , 192 N.J. at 246). To overcome the presumption, "the State bears the burd en of proving by a preponderance of the evidence not only that the sea rch or seizure was premised on probable cause, but also that it f[ell] within o ne of the few well-delineated exceptions to the warrant requirement." State v. B ryant, 227 N.J. 60, 69

- 70 (2016) (alteration in original) (quoting State v. J ohnson, 193 N.J. 528, 552 (2008)). One such exception is the "plain view" exception. Under the plain view exception, an officer may, wit hout a warrant, "seize evidence or contraband that is in plain view." Sta te v. Gonzales, 227 N.J. 77,11 A- 3538

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90 (2016). To lawfully seize evidence or contraban d under this exception, the "officer must lawfully be in the area where [the off icer] observed and seized the incriminating item or contraband, and it must be im mediately apparent that the

seized items is evidence of a crime." Id. at 101. "Any constitutional challenge to the search of a pl ace or seizure of an item must begin with" a court considering whether a defe ndant has standing to pursue the challenge. State v. Randolph, 228 N.J. 566, 58 1 (2017). "If the defendant has standing," a court then must determine whether "the police secure[d] a warrant to search or seize by constitutional means, and if no warrant issued," whether "the search or seizure [was] justified by a n exception to the warrant requirement." Ibid. "When the seizure of evidence is the result of the State's unconstitutional action, the principal remedy for v iolation of the constitutional right to be free from unreasonable searches and sei zures is exclusion of the evidence seized." Bryant, 227 N.J. at 71. Regarding the issue of standing, "under Article I, Paragraph 7 of the New Jersey Constitution, 'a criminal defendant is entit led to bring a motion to suppress evidence obtained in an unlawful search an d seizure if [the defendant] has a proprietary, possessory[,] or participatory i nterest in either the place searched or the property seized.'" Randolph, 228 N .J. at 581-82 (quoting State12 A- 3538

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v. Alston, 88 N.J. 211, 228 (1981)). A defendant c harged with a possessory offense of the evidence seized, as in this case, ha s automatic standing to challenge a search or seizure, unless the State est ablishes an exception to that rule. Id. at 581, 585; State v. Lamb, 218 N.J. 300 , 313 (2014); Alston , 88 N.J. at 228. "Under New Jersey Law, the State bears the burden of showing that [a] defendant has no proprietary, possessory, or partic ipatory interest in either the place searched[,] or the property seized." Randolp h, 228 N.J. at 582 (citin g State v. Brown, 216 N.J. 508, 528 (2014)). Under the three exceptions to the automatic standin g rule for searches of real property, an accused will not have standing to challenge the search of : (1) an "abandoned property," 4 (2) "property on which he was trespassing," or (3) "property from which he was lawfully evicted." Ran dolph, 228 N.J. at 585 (citing Brown, 216 N.J. at 529 and generally, State v. Hinton, 216 N.J. 211 (2013)). "[T]o strip a defendant of automatic stan ding to challenge a search,"

4 In fact, our Supreme Court recently held, "[w]hen property is abandoned, . .

. the defendant has 'no right to challenge the search or seizure of that property.'" State v. Gartrell, 256 N.J. 241, 250 (2024) (quotin g Johnson, 193 N.J. at 548). "[P]roperty is abandoned only if '(1) a person has either actual or constructive control or dominion over property; (2) [the person] knowingly and voluntarily relinquishes any possessory or ownership interest i n the property; and (3) there are no other apparent or known owners of the proper ty.'" Id. at 251 (quoting State v. Carvajal, 202 N.J. 214, 223, 225 (2010)).13 A- 3538

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the State bears the burden of proving one of these exceptions by a preponderance

of the evidence

. Ibid. (citing Brown, 216 N.J. at 527-28). Guided by these principles, we decline to conclude on the limited record before us that the judge erred in finding the State failed to establish defendant had no standing to challenge the constitutionality of the search. However, our resolution of the standing issue does not end our inquiry. "A defendant's automatic standing to file a motion to suppress . . . does not equate to a finding that he or she has a substa ntive right of privacy in the place searched that mandates the grant of that moti on." Hinton, 216 N.J. at 235 (citing Johnson , 193 N.J. at 547). Indeed, "[e]ven when a defenda nt has automatic standing, if . . . the merits rest on whe ther [a] defendant possesses a reasonable expectation of privacy, [a] court must address that issue as part of the substantive constitutional analysis. That inqu iry is separate and distinct from the question of standing." Id. at 234. "Under state law, a 'defendant must show that a rea sonable or legitimate expectation of privacy was trammeled by government authori ties'" to prevail on a suppression motion. Id. at 233 (quoting State v. Evers, 175 N.J. 355, 3 68-69 (2003)) ; see also State v. Taylor, 440 N.J. Super. 515, 522 (App. Div. 2015) ("Absent a reasonable expectation of privacy in the place or thing searched, an14 A- 3538

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individual is not entitled to protection under either the Fourth Amendment or Article I, Paragraph 7 of the New Jersey Constituti on." ). Here, defendant failed to show he had any legitimat e expectation of privacy in the areas of Lexington Avenue that were searched and seized following the shooting incident. In fact, "notwithstanding the residential setting of the police activity," Hinton , 216 N.J. at 236, we are convinced defendant had no objectively reasonable expectation of privacy re garding the properties at 57, 61, or 63 Lexington Avenue because the record is de void of any evidence he rented, owned, or stayed at any of the se properties prior to the April 5, 2021

incident

. Under these circumstances, we are persuaded the pol ice action that

occurred on April 5, 2021 did not constitute a "search" in violation of defendant's rights under either the Fourth Amendmen t of the United States Constitution or Article I of the New Jersey Constit ution. See id. at 239- 40 ; see also State v. Linton, 356 N.J. Super. 255, 259 (App . Div. 2002) (holding the defendant "ha[d] no constitutionally-reasonable exp ectation of privacy" for drugs he concealed in "someone else's vacant proper ty." ). That said, even if we

concluded a search had occur red , we are satisfied, for the reasons expressed in the motion judge's thoughtful written opinion, the gun recovered from 6315 A- 3538

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Lexington Avenue was lawfully discovered in plain v iew, and therefore, the seizure of the gun was c onstitutional.

To the extent we have not addressed defendant's rem aining arguments, we conclude they are without sufficient merit to warra nt discussion in a written opinion. R. 2:11 -3(e)(2).

Affirmed.