1

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 v. Amir Randolph (A-70-15) (076506)

Argued January 3, 2017 -- Decided May 3, 2017

Albin, J., writing for a unanimous Court.

In this appeal, the Court considers whether a person charged with a possessory drug offense has automatic 

standing to challenge a search or seizure.

Defendant Amir Randolph was charged with various drug offenses and moved to suppress evidence. 

Officers testified at the suppression hearing that, in September 2011, they conducted surveillance of a three-story 

apartment building. During the surveillance, Markees King stood in the second-floor apartment, and later exited the 

building, where he was approached by Edward Wright. Wright threw bills on the building’s porch, and King handed 

him a white object and retrieved the money. A second individual came up to King and handed him money and, in 

return, received a small white object. Detective Goodman believed that he had observed two drug transactions. 

Officers stopped and arrested Wright and, shortly thereafter, King was arrested as he exited the building.

Sergeant Trowbridge then attempted to enter building. The tenant of the first-floor apartment opened the 

door, admitting Sergeant Trowbridge into the vestibule. Once inside, Sergeant Trowbridge heard what sounded like 

someone running from the second floor up to the third floor. He also found a handgun in the vestibule. Sergeant 

Trowbridge then proceeded alone to the second floor. The door to the second-floor apartment, where King had been 

sighted, was ajar. From the hallway, Sergeant Trowbridge could see a couch and debris. He described the 

apartment as appearing to be vacant or abandoned and entered to search for “any additional actors there.” As he 

walked through the apartment, Sergeant Trowbridge observed several items including a television, video gaming 

system, two couches, boots, sneakers, clothes, a backpack, and a soda bottle, among other things. He also 

discovered baggies of marijuana, some currency, a box, a cigarette box, and a letter from an insurance company 

addressed to Amir Randolph (defendant) at a different address. Inside the boxes he found suspected heroin and 

marijuana. In all, the police recovered thirty-five baggies of marijuana and forty glassine envelopes of heroin.

At the suppression hearing, the prosecutor argued that the warrantless search of the second-floor apartment 

was valid based on the exigent-circumstances and protective-sweep exceptions to the warrant requirement. Instead 

of addressing that argument, the trial court upheld the search because defendant did not provide any evidence that he 

had a reasonable expectation of privacy in the vacant second-floor apartment or in the evidence found there.

At trial, the State’s presentation largely mirrored the testimony at the suppression hearing. Defense counsel 

requested an instruction on “mere presence” and “flight.” The trial judge agreed to charge on flight but explained 

that a charge on “mere presence” was not necessary. The jury asked questions, generally concerning the relationship 

between defendant, King, and the tenant, and defendant’s location when arrested. The trial judge simply reminded 

the jurors to use their “own good common sense, consider the evidence . . . and give it a reasonable and fair 

construction in light of your knowledge of how people behave.” The jury returned guilty verdicts on all counts. 

The Appellate Division reversed, concluding that the trial court erred in upholding the search based on the 

flawed finding that the second-floor apartment was vacant or abandoned. 441 N.J. Super. 533, 552-53 (App. Div.

2015). The panel remanded to determine whether the search was justified based on the protective-sweep or exigentcircumstances doctrine. The panel also reversed defendant’s conviction based on the failure to give a “mere 

presence” charge. According to the panel, the jury should have been instructed that, without more, defendant’s 

“mere presence” at the place where contraband was seized is insufficient to establish a finding of constructive 

possession. Finally, the panel raised concerns about the propriety of the flight charge without resolving the issue.

The Court granted the State’s petition for certification. 224 N.J. 529 (2016).
2

HELD: Defendant had automatic standing to challenge the search of the apartment because he was charged with 

possessory drug offenses and because the State failed to show that the apartment was abandoned or that defendant was a 

trespasser. Failing to issue the “mere presence” charge was harmless error.

1. This appeal concerns defendant’s standing to challenge the search of the apartment. The New Jersey 

Constitution’s prohibition against unreasonable searches and seizures affords greater protection than the federal

Constitution. In New Jersey, the State bears the burden of showing that defendant has no proprietary, possessory, or 

participatory interest in either the place searched or the property seized. Although the Court does not engage in a 

reasonable expectation of privacy analysis when a defendant has automatic standing to challenge a search, it does so 

in determining whether a defendant has a protectible right of privacy in a novel class of objects or category of 

places. Here, the Court is applying traditional principles of automatic standing to a place that historically has 

enjoyed a heightened expectation of privacy—the home. No unique circumstances call for the Court to engage in an 

additional reasonable expectation of privacy analysis as a supplement to its standing rule. (pp. 16-20)

2. The automatic standing rule, however, is subject to reasonable exceptions, and, in this appeal, the Court 

recognizes three exceptions in cases concerning real property: An accused will not have standing to challenge a 

search of abandoned property, property on which he was trespassing, or property from which he was lawfully 

evicted. The State has the burden of establishing that one of those exceptions applies to strip a defendant of 

automatic standing to challenge a search. (pp. 21-25)

3. In the present case, defendant had automatic standing to challenge the search of the second-floor apartment 

because he was charged with possessory drug offenses, and because the State failed to establish that Sergeant 

Trowbridge had an objectively reasonable basis to believe that the apartment was abandoned or that defendant was a 

trespasser. Regardless of the disarray in the apartment and the fact that it was not fully furnished, there were clear 

signs that someone occupied it. (pp. 25-27)

4. Importantly, at the suppression hearing, the prosecutor contended that the police conducted a lawful search 

pursuant to the exigent-circumstances and protective-sweep exceptions to the warrant requirement. The trial court 

never addressed those substantive grounds. The trial court, moreover, did not apply the well-established principles 

governing standing. Rather, the court turned to the reasonable expectation of privacy test, typically used in federal 

courts, and concluded—without any evidence—that the apartment was vacant. The Court, therefore, concludes that 

the trial court erred in its analysis and that a new suppression hearing must be conducted. (pp. 27-29)

5. The Court next considers whether the trial court erred in not instructing the jury on “mere presence” and, if so, 

whether the failure to give the charge denied defendant a fair trial. Defendant requested that the trial court read to 

the jury the Model Charge that instructs that a defendant’s “mere presence” at the scene, standing alone, is 

insufficient to prove guilt. The court denied that request. The trial court was clearly mistaken in its belief that the 

“mere presence” charge is given only in conspiracy cases. No constraint barred the trial court from giving the “mere 

presence” charge, and the better course would have been to give the charge to disabuse the jury of any possible 

notion that a conviction could be based solely on defendant’s presence in the building. However, unlike the 

appellate panel, the Court concludes that the failure to give the “mere presence” charge did not deprive defendant of 

a fair trial. The charge, as a whole, sufficiently informed the jury—without using the words “mere presence”—that 

defendant’s presence in the building, standing alone, would be insufficient to establish guilt. The Court, therefore, 

reverse the judgment of the Appellate Division granting defendant a new trial. (pp. 29-32)

6. Finally, the Court agrees with the Appellate Division that, if there is a retrial, the trial court “must carefully 

consider whether it is appropriate to charge flight, and, if so, must tailor the charge to the facts of the case.” 441 

N.J. Super. at 563-64. In doing so, the court must determine whether the probative value of evidence of flight is 

“substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury,” N.J.R.E.

403(a), and whether a carefully crafted limiting instruction could ameliorate any potential prejudice. (pp. 33-36)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the 

matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, 

SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
1

SUPREME COURT OF NEW JERSEY

A-70 September Term 2015

076506

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

AMIR RANDOLPH,

Defendant-Respondent.

Argued January 3, 2017 – Decided May 3, 2017

On certification to the Superior Court, 

Appellate Division, whose opinion is 

reported at 441 N.J. Super. 533 (App. Div. 

2015).

Frank Muroski and Jenny M. Hsu, Deputy 

Attorneys General, argued the cause for 

appellant (Christopher S. Porrino, Attorney 

General of New Jersey, attorney).

Margaret R. McLane, Assistant Deputy Public 

Defender, argued the cause for respondent 

(Joseph E. Krakora, Public Defender, 

attorney).

Alexander R. Shalom argued the cause for 

amicus curiae American Civil Liberties Union 

of New Jersey (Edward L. Barocas, Legal 

Director, attorney; Mr. Shalom, Mr. Barocas, 

and Jeanne M. LoCicero, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

Under our well-established state constitutional 

jurisprudence, an accused generally has standing to challenge a 

search or seizure whenever “he has a proprietary, possessory or 
2

participatory interest in either the place searched or the 

property seized.” State v. Alston, 88 N.J. 211, 228 (1981). 

When the accused is charged with committing a possessory drug 

offense -- as in this case -- standing is automatic, unless the 

State can show that the property was abandoned or the accused 

was a trespasser. See State v. Brown, 216 N.J. 508, 529 (2014). 

The primary issue in this appeal involves the warrantless 

search of an apartment, where the police found drugs and

evidence allegedly linking defendant to the apartment. Evidence 

seized from the apartment was the basis for multiple drug 

charges filed against defendant. At a suppression motion, the 

State argued that exigent circumstances and the need for a 

protective sweep justified the entry into the apartment and the 

seizure of evidence. The trial court upheld the search,

apparently on standing grounds, finding that defendant did not 

have a reasonable expectation of privacy in the apartment. 

A panel of the Appellate Division reversed and held that

because defendant had automatic standing to challenge the search 

based on the possessory drug charges, defendant had no burden to 

establish that he had a reasonable expectation of privacy in the 

apartment. The panel also rejected the State’s assertion, 

raised for the first time on appeal, that the apartment was 

abandoned. The panel remanded to the trial court to determine 

whether the search was justified based on the protective-sweep 
3

or exigent-circumstances doctrine. The panel also reversed 

defendant’s conviction based on the trial court’s failure to 

give a “mere presence” charge. 

We affirm the panel’s determination that defendant had 

automatic standing to challenge the search of the apartment 

because he was charged with possessory drug offenses and because 

the State failed to show that the apartment was abandoned or 

that defendant was a trespasser. Our automatic standing 

jurisprudence eliminates any inquiry into defendant’s reasonable 

expectation of privacy in circumstances such as here. We 

therefore remand to determine whether the search of the 

apartment was justified by an exception to the warrant 

requirement.

Additionally, although we find that the better course would 

have been to give the jury an instruction on “mere presence,”

the failure to do so was harmless error. We therefore vacate 

the panel’s judgment requiring a new trial on that issue.

I.

A.

Defendant Amir Randolph was charged in a multi-count 

indictment with third-degree possession of heroin, N.J.S.A.

2C:35-10(a)(1); third-degree possession with intent to 

distribute heroin in a quantity less than one-half ounce, 

N.J.S.A. 2C:35-5(a)(1), (b)(3); third-degree possession with 
4

intent to distribute heroin within 1000 feet of school property, 

N.J.S.A. 2C:35-7; second-degree possession with intent to 

distribute heroin within 500 feet of a public housing facility, 

N.J.S.A. 2C:35-7.1; fourth-degree possession with intent to 

distribute marijuana in a quantity less than one ounce, N.J.S.A.

2C:35-5(a)(1), (b)(12); third-degree possession with intent to 

distribute marijuana within 1000 feet of school property, 

N.J.S.A. 2C:35-7; and third-degree possession with intent to 

distribute marijuana within 500 feet of a public housing 

facility, N.J.S.A. 2C:35-7.1.1

Defendant moved to suppress evidence that he claimed was 

procured by an unconstitutional search. During a three-day 

suppression hearing, the State called as witnesses Sergeant 

Stephen Trowbridge and Detective Anthony Goodman of the Jersey 

City Police Department. At that hearing, the officers testified 

to the following events. 

On the morning of September 19, 2011, Jersey City police 

officers conducted surveillance of a three-story apartment 

building, apparently consisting of three units, at 77 Grant 

Avenue in Jersey City. During the surveillance, Markees King

 

1 Defendant was also charged with conspiracy to distribute drugs. 

The State dismissed that charge at trial before its submission 

to the jury. Markees King and Edward Wright were charged as 

codefendants in this indictment. Because they are not parties 

to this appeal, there is no need to specify the charges that 

applied to them. 
5

stood in the second-floor apartment, peering out the window. As 

King exited the building, Edward Wright approached him. Wright 

threw three or four bills on the building’s porch, and King 

handed him a white object and retrieved the money. A second 

individual came up to King and handed him money and, in return, 

received a small white object. King counted the money and then 

reentered the building as the two purchasers left the area.

Detective Goodman believed that he had observed two drug 

transactions. Officers stopped and arrested Wright and 

recovered a glassine bag of heroin from his pants pocket. The 

second drug purchaser somehow eluded the police. Shortly 

thereafter, King was arrested as he exited the building.

At this point, Sergeant Trowbridge attempted to gain entry 

into the building. He knocked on the window of the first-floor

apartment, and the tenant opened the door, admitting Sergeant 

Trowbridge into the vestibule. Moments before Sergeant 

Trowbridge gained entry, Andrew Bentley walked out of the 

building and was overheard by Detective Goodman speaking into a 

cell phone, saying, “they’re coming in, they’re at the door 

now.”

Once in the building’s vestibule, Sergeant Trowbridge heard 

what sounded like someone running from the second floor up to 

the third floor. As he waited for backup officers, Sergeant 

Trowbridge opened the lid of a grill located at the bottom of 
6

the stairs and found a handgun. When a police officer arrived, 

Sergeant Trowbridge instructed him to secure the weapon, and 

then Sergeant Trowbridge proceeded alone to the second floor. 

The door to the second-floor apartment, where King had been 

sighted, was ajar. From the hallway, Sergeant Trowbridge could 

see a couch inside as well as “debris thrown about.” He 

described the apartment as appearing to be vacant or abandoned

and entered to search for “any additional actors there.” As he 

walked through the apartment, Sergeant Trowbridge observed, 

among other things, a television and video gaming system, two 

couches with clothing draped on one, Timberland boots, a pair of

Nike sneakers, a backpack, a kitchen without a refrigerator, and 

clothes strewn on the floor along with a cigarette pack and a 

soda bottle. He also discovered on the floor Ziploc baggies of

marijuana, some currency, a silver box, a Newport cigarette box, 

and a letter from Zurich American Insurance Company addressed to 

Amir Randolph (defendant) at 213 Mallory Avenue, Number 1, 

Jersey City. He looked inside the silver and Newport boxes and 

found glassine bags of suspected heroin and an additional 

marijuana stash. In all, the police recovered thirty-five 

Ziploc baggies of marijuana and forty glassine envelopes of 

heroin.

The couches accounted for the only furniture in the 

apartment. The police, however, did not speak with the landlord 
7

to determine whether the apartment was rented and, if so, to 

whom. 

As Sergeant Trowbridge exited the apartment into the 

hallway, he encountered members of the United States Marshals 

Fugitive Task Force, who were proceeding to the third floor with 

a warrant to arrest defendant for a homicide unrelated to the 

drug investigation. The Marshals apparently were conducting a 

separate surveillance and investigation, unbeknownst to the 

Jersey City police. The Marshals found defendant, along with a

woman and a child, in the third-floor apartment. Defendant was 

taken into custody.

At the conclusion of the State’s presentation, the trial 

court denied defendant’s request to call Detective Matthew 

Stambuli as a witness.2 The defense then rested.

The prosecutor argued that the warrantless search of the 

second-floor apartment was valid based on the exigentcircumstances and protective-sweep exceptions to the warrant 

requirement. Instead of addressing that argument, the trial 

court upheld the search because defendant did not provide any 

 

2 Defendant intended to call Detective Stambuli to testify that 

the cell phone carried by Andrew Bentley was inoperable. The 

testimony evidently was offered to rebut Detective Goodman’s 

testimony that Bentley spoke into the cell phone with the 

message, “they’re coming in.” The prosecutor objected to the 

testimony, and the trial court ruled that the testimony was 

“irrelevant to what the police officers did at the time.”
8

evidence that he had a reasonable expectation of privacy in the 

vacant second-floor apartment or in the narcotics, 

paraphernalia, and paperwork found there.

B.

At trial, the State’s presentation largely mirrored the 

testimony at the suppression hearing. The jury, however, 

learned additional details. When King was arrested, the police 

seized from him a Ziploc bag containing marijuana and $132 in 

cash. Furthermore, defendant was arrested in a bedroom in the 

third-floor apartment, and the police recovered from him $429 in

small denominations, totaling 81 bills in all. The State’s drug 

expert testified that possession of currency in small 

denominations is consistent with street-level drug dealing. 

At the charge conference, defense counsel requested that 

the court instruct the jury on “mere presence” and “flight.”

The trial judge agreed to charge on flight but explained that a 

charge on “mere presence” was not necessary because the State 

intended to dismiss the conspiracy count. 

During its deliberations, the jury asked the court the 

following questions:

What happens if we are not unanimous about the 

decision of one of the Defendants? Was there 

statements provided about the relationship 

between [defendant] and tenant, [defendant]

and [King], [King] and tenant?

. . . .
9

Where in the third floor apartment was 

[defendant] arrested from and where was he 

hiding?

In response, the trial judge simply reminded the jurors to use 

their “own good common sense, consider the evidence . . . and 

give it a reasonable and fair construction in light of your 

knowledge of how people behave.” 

The jury returned guilty verdicts on all counts. The court 

sentenced defendant to a seven-year state-prison term subject to 

a three-year parole-ineligibility period on the charge of 

second-degree possession with intent to distribute heroin within 

500 feet of a public housing facility. The court also imposed a 

concurrent five-year term subject to a three-year paroleineligibility period on the charge of third-degree possession 

with intent to distribute marijuana within 1000 feet of school 

property. The court merged the other counts into those 

convictions. All requisite fines and penalties were imposed.

C.

A panel of the Appellate Division concluded that the trial 

court erroneously upheld the search based on its flawed finding 

that the second-floor apartment was vacant or abandoned. State 

v. Randolph, 441 N.J. Super. 533, 552-53 (App. Div. 2015). The 

panel noted that defendant had automatic standing to challenge 

the search, unless the State established that the apartment was 
10

abandoned or that he was a trespasser. Id. at 548-49. The 

panel found that the presence of a couch, a television and a 

gaming console, sneakers and boots, clothes, and other items did 

not give the police an objectively reasonable basis to believe 

that the apartment was abandoned. Id. at 545, 553. The panel

also faulted the trial court for imposing on defendant the 

burden of proving that he had a reasonable expectation of 

privacy in the apartment in contravention of the automatic 

standing rule. Id. at 553. The panel therefore remanded for a 

new suppression hearing to determine whether the search was 

justified based on the exigent-circumstances or protective-sweep

exception to the warrant requirement. Ibid.

The panel, moreover, held that the trial court’s failure to 

give a “mere presence” charge at defendant’s request constituted 

reversible error and therefore ordered a new trial. Id. at 561-

62. According to the panel, the jury should have been 

instructed that, without more, defendant’s “mere presence” at 

the place where contraband was seized, i.e., the building at 77 

Grant Avenue, is insufficient to establish a finding of

constructive possession. Id. at 558-60. The panel stated that 

the jury’s questions, which “sought guidance from the court 

respecting the relationship of defendant to the apartment,” 

confirmed the need for a “mere presence” charge. Id. at 559-60. 

Last, the panel raised concerns about the propriety of the 
11

flight charge without resolving the issue. Id. at 562-64. The 

panel pointed out that Sergeant Trowbridge could not identify 

defendant as the person running upstairs; that defendant did not 

have a cell phone when arrested; that defendant may have been 

eluding the U.S. Marshals, who had a warrant for his arrest; and 

that Bentley may have been notifying the U.S. Marshals -- as 

opposed to defendant -- about Sergeant Trowbridge’s entry into 

the building. Id. at 556-57. The panel also noted that the 

jury never learned that the Marshals were pursuing defendant on 

a homicide warrant. Id. at 557. The panel reasoned that, to 

support a flight charge, the “evidence [of flight] must 

unequivocally support a reasonable inference that the actor’s 

conduct following the commission of a crime may be relied upon 

as evidence of the actor’s guilt” regarding the crime charged. 

Id. at 563. The panel instructed the remand court to “carefully 

consider whether it is appropriate to charge flight, and, if so, 

[to] tailor the charge to the facts of the case to prevent juror 

confusion.” Id. at 563-64.

We granted the State’s petition for certification. State 

v. Randolph, 224 N.J. 529 (2016). We also granted the motion of 

the American Civil Liberties Union of New Jersey (ACLU-NJ) to 

participate as amicus curiae.

II.

A.
12

The State claims that this case is not about standing, 

conceding that defendant had automatic standing to challenge the 

search because he faced possessory drug charges. Instead, the 

State argues that the real issue is that defendant failed to 

prove that he had “a reasonable expectation of privacy in the 

apartment to prevail on his claim that his rights were 

violated.” Despite defendant’s automatic standing, the State 

insists that defendant had the burden of showing that the police 

violated his legitimate expectation of privacy in searching the 

second-floor apartment and that, barring such a showing, he has 

no right to the suppression of evidence seized from the 

premises. To advance this argument, the State relies primarily 

on State v. Hinton, 216 N.J. 211 (2013), a case in which this 

Court found that a defendant evicted from an apartment no longer 

had an expectation of privacy in the premises or a right to 

object to a search of it. Secondarily, the State contends that 

because the apartment was “apparently vacant” and used for drug 

activity, the police had an objectively reasonable basis to 

enter and search the premises.

The State further asserts that, contrary to the Appellate 

Division’s ruling, the trial court’s refusal to supplement the 

instruction on constructive possession with a “mere presence” 

charge was entitled to deference. According to the State, the 

constructive-possession instruction “adequately explained to the 
13

jury that mere presence was an insufficient basis to find 

defendant guilty and that he could not be found guilty based 

solely on his proximity to the drugs.”

The State also urges that we vacate the Appellate

Division’s remand order and instruct that the jury may consider 

evidence of flight, even if that evidence is less than 

“unequivocal.”

B.

Defendant counters that, based on the possessory drug 

charges filed against him, the Appellate Division correctly 

found that he had automatic standing to challenge the 

warrantless search of the apartment. Defendant acknowledges 

that there are exceptions to the standing rule. Had the State

proven that the apartment was abandoned or that defendant was a 

trespasser, defendant concedes he would not have had standing to 

object to the search. Defendant, however, submits that, in 

contravention of our standing jurisprudence, the State has 

“invented” an additional and unnecessary inquiry that shifts the 

burden to defendant to prove that he had an expectation of 

privacy in the place searched -- here, the apartment. Defendant 

explains that a reasonable expectation of privacy analysis is 

undertaken only when a court must determine whether a new class

of objects or places is protected by the Constitution and that 

such an analysis is inappropriate for a home, which is a well-
14

established constitutionally protected sphere.

Defendant also argues that the Appellate Division correctly

reversed his convictions because the trial court erred in 

failing to charge the jury on “mere presence” and compounded 

that error by omitting the charge when the jury asked for 

clarification concerning defendant’s relationship to the 

apartment. Additionally, defendant asks that we affirm the 

Appellate Division’s remand order cautioning against a flight 

charge unless the evidence unequivocally supports an inference 

of flight.

C.

Amicus ACLU-NJ argues that the State’s proposed approach

undermines the automatic standing rule because it relieves the 

State of its burden of establishing an exception to the rule, 

e.g., abandonment or trespass, and shifts the burden to 

defendant to prove that he possessed a reasonable expectation of 

privacy in the apartment. That, the ACLU-NJ states, will 

“overturn longstanding precedent on ‘automatic standing.’” The 

ACLU-NJ places particular emphasis on “[t]he bizarre fact 

pattern of Hinton” -- not present here -- that implicated a 

complex statutory backdrop involving an eviction action in which 

a court officer, executing a warrant of removal, reported the 

presence of drugs and allowed the police entry onto the 

premises. According to the ACLU-NJ, under the novel 
15

circumstances in Hinton, the Court made inquiry into the 

reasonable expectation of privacy of the evicted tenant, who 

essentially was a trespasser. The ACLU-NJ urges this Court to 

confine Hinton to its unique setting and not to accept the 

State’s invitation to expand Hinton and strike down the 

automatic standing rule. 

III.

We first conclude that the trial court erred in denying

defendant’s motion to suppress on the ground that he failed to 

show that he possessed a reasonable expectation of privacy in 

the apartment searched. In light of the charged possessory drug 

offenses, defendant had automatic standing to challenge the 

search of the apartment, unless the State established an 

exception to that rule. The State bore the burden of proving 

that the apartment was abandoned or that defendant was a 

trespasser but failed to advance the argument at the suppression 

hearing.

Before addressing the issue of standing, we turn first to 

some basic search and seizure principles.

A.

In virtually identical language, the Fourth Amendment of 

the United States Constitution and Article I, Paragraph 7 of the 

New Jersey Constitution guarantee “[t]he right of the people to 

be secure in their persons, houses, papers, and effects, against 
16

unreasonable searches and seizures . . . and no Warrants shall 

issue, but upon probable cause.” U.S. Const. amend. IV; see 

also N.J. Const. art. I, ¶ 7. Any constitutional challenge to 

the search of a place or seizure of an item must begin with 

certain fundamental inquiries. Does the defendant have standing 

to challenge the search or seizure? If the defendant has 

standing, did the police secure a warrant to search or seize by 

constitutional means, and if no warrant issued, was the search 

or seizure justified by an exception to the warrant requirement? 

The only issue here concerns whether defendant had standing 

to challenge the search of the second-floor apartment at 77 

Grant Avenue.

B.

In a series of cases, beginning with State v. Alston, we 

have repeatedly reaffirmed that, under Article I, Paragraph 7 of 

the New Jersey Constitution, “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.” 88 N.J. 211, 228 (1981); see State v. Lamb, 

218 N.J. 300, 313 (2014) (“New Jersey has retained the automatic 

standing rule . . . .”). Our standing rule deviates from the 

federal approach, which requires that “a person alleging a 

Fourth Amendment violation . . . establish that law enforcement 
17

officials violated ‘an expectation of privacy’ that he possessed 

in the place searched or item seized.” State v. Johnson, 193 

N.J. 528, 542 (2008) (quoting United States v. Salvucci, 448 

U.S. 83, 93, 100 S. Ct. 2547, 2553, 65 L. Ed. 2d 619, 629 

(1980)). 

We explained in Alston, supra, that the more amorphous 

federal standing rule does not provide New Jersey’s citizens 

sufficient protection from unlawful searches and seizures and 

that our standing rule is “more consonant with our own 

interpretation of the plain meaning of Article 1, Paragraph 7 of 

our State Constitution.” 88 N.J. at 225-27. Accordingly, the 

New Jersey Constitution’s prohibition against unreasonable 

searches and seizures affords New Jersey citizens greater 

protection than that provided by the United States Constitution. 

Lamb, supra, 218 N.J. at 313-14. 

The points of departure between federal and state concepts 

of standing are clear. Under New Jersey law, the State bears 

the burden of showing that defendant has no proprietary, 

possessory, or participatory interest in either the place 

searched or the property seized. State v. Brown, 216 N.J. 508, 

528 (2014). Under federal law, the defendant has the burden of 

showing that he had a reasonable expectation of privacy that was 

violated by the police. See United States v. Jones, 565 U.S.

400, 406, 132 S. Ct. 945, 950, 181 L. Ed. 2d 911, 919 (2012). 
18

Although the proprietary, possessory, or participatory 

interest standard “incorporates the notion of a reasonable 

expectation of privacy, [it] also advances other important state 

interests.” Johnson, supra, 193 N.J. at 543. Those interests 

are evident in the three principles undergirding New Jersey’s 

standing rule. 

The first principle is that “a person should not be 

compelled to incriminate himself by having to admit ownership of 

an item that he is criminally charged with possessing in order 

to challenge the lawfulness of a search or seizure.” Ibid.

(citing Alston, supra, 88 N.J. at 222 n.6). The second is that 

the State should not take seemingly conflicting positions at a 

suppression motion and trial. Ibid. (citing Alston, supra, 88 

N.J. at 223). Thus, our standing rule restricts the State from

arguing, on one hand, that the defendant did not possess a 

privacy interest in the place searched or property seized for 

standing purposes while, on the other, arguing that the 

defendant is inextricably tied to the place searched and 

possessed the item seized to prove his guilt. Ibid. The last 

principle 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 honor fundamental constitutional 
19

principles.” Ibid. (citing Alston, supra, 88 N.J. at 226 n.8). 

Thus, a defendant challenging a search under New Jersey’s 

standing rule may be vindicating the rights of others as well.

The State argues that automatic standing does not relieve

defendant of his obligation to show that he had a reasonable 

expectation of privacy in the apartment searched. We dismissed 

a similar argument in Johnson, stating, “the State’s proposed 

approach merely places another layer of standing -- the federal 

standard -- on top of our automatic standing rule.” See id. at 

546. We have “roundly rejected hinging a defendant’s right to 

challenge a search based on ‘a reasonable expectation of 

privacy’ analysis.” Ibid. (citing Alston, supra, 88 N.J. at 

226-27).

C.

Although we do not engage in a reasonable expectation of 

privacy analysis when a defendant has automatic standing to 

challenge a search, we do so in determining whether a defendant 

has a protectible Fourth Amendment and Article I, Paragraph 7

right of privacy in a novel class of objects or category of 

places.

For example, in State v. Earls, we determined for the first 

time that “individuals have a reasonable expectation of privacy

in the location of their cell phones under the State 

Constitution” and therefore the State must obtain a warrant to 
20

secure location information from a cell phone provider. 214 

N.J. 564, 568-69 (2013). Having made that finding, a similar 

expectation of privacy analysis is not required again. After 

Earls, individuals whose cell phones are used as tracking 

devices have standing to challenge information secured from a 

cell phone provider without a warrant or without justification 

under an exception to the warrant requirement. 

We also engaged in the same expectation of privacy analysis 

in determining, for the first time, that the State must serve a 

grand jury subpoena to secure an individual’s “subscriber 

information” from an Internet service provider, State v. Reid, 

194 N.J. 386, 389 (2008), electric utility records, State v. 

Domicz, 188 N.J. 285, 299 (2006), or bank records, State v. 

McAllister, 184 N.J. 17, 32-33 (2005). Having decided in those 

then-novel cases that individuals have a protectible Article I, 

Paragraph 7 possessory or proprietary interest, future grievants 

in criminal cases have automatic standing to challenge a search 

or seizure of those records not secured by constitutional means. 

Here, we are applying traditional principles of automatic 

standing to a place that historically has enjoyed a heightened 

expectation of privacy -- the home. No unique circumstances 

call for this Court to engage in an additional reasonable 

expectation of privacy analysis as a supplement to our standing 

rule. 
21

The automatic standing rule, however, is subject to 

reasonable exceptions.

D.

Today, we recognize three exceptions to the automatic 

standing rule in cases concerning real property. An accused 

will not have standing to challenge a search of abandoned 

property, Brown, supra, 216 N.J. at 529, property on which he 

was trespassing, ibid., or property from which he was lawfully 

evicted, see generally Hinton, supra, 216 N.J. 211. The State 

has the burden of establishing that one of those exceptions 

applies to strip a defendant of automatic standing to challenge 

a search. Brown, supra, 216 N.J. at 527-28.

In Brown, we rejected the State’s argument that the 

defendant did not have standing to challenge the warrantless 

entry and search of a home for drugs because the structure was 

abandoned. Id. at 541. We upheld the trial court’s finding 

that the State had not established that the targeted row house 

was “abandoned,” even though the premises were in deplorable 

condition, with a propped up door, a broken window, a missing 

electric meter, a living room in disarray, and a floor littered 

with trash bags filled with old clothes and other items. Id. at 

540. We acknowledged the sad fact that “[t]here are 

impoverished citizens who live in squalor and dilapidated 

housing, with interiors in disarray and in deplorable condition, 
22

and yet these residences are their homes.” Id. at 534. We 

noted that the warrant requirement does not have a “trashy house 

exception,” ibid. (quoting United States v. Harrison, 689 F.3d 

301, 311 (3d Cir. 2012), cert. denied, ___ U.S. ___, 133 S. Ct.

1616, 185 L. Ed. 2d 602 (2013)), and that “[a] home is not 

deemed ‘abandoned’ merely because a person is dealing drugs from 

it,” ibid. 

We also made the simple observation “that a house or 

building, even if seemingly unoccupied, typically will have an 

owner.” Id. at 533. That notion extends to an apartment as 

well. Thus, one reasonable step a police officer might take to 

determine whether a building is abandoned is to attempt to 

identify the owner by inspecting deeds, tax-assessment records, 

or utility records.3 Ibid. 

Practical steps can also be taken to determine whether a 

person is a trespasser. A trespasser does not have standing to 

challenge a search because “a trespasser, by definition, does 

not have a possessory or proprietary interest in property where 

he does not belong -- where he does not have permission or 

consent to be.” Id. at 535. A landlord of a building or his 

 

3 Sergeant Trowbridge used the terms “vacant” and “abandoned” in 

describing the second-floor apartment. That property is vacant

does not mean that it is abandoned. Indeed, property may be 

vacant because it has yet to be leased or for any of a number of 

other reasons.
23

agent -- if identifiable and available -- presumably would know 

whether an apartment is leased and to whom. Indeed, contacting 

the person who knows the rental status of the apartment is one 

way the police can identify a trespasser. 

We did not suggest in Brown that a records check is the 

only means for determining whether a building is abandoned or a 

defendant is a trespasser. Id. at 533. The condition of a 

building and its interior and the surrounding environs, as well 

as a police officer’s personal knowledge of the neighborhood and 

its residents, are other critical factors -- but not necessarily 

all -- that may come into play. Id. at 534. One example is 

that a police officer may know that the owner of certain 

property is on vacation and that a vagrant on the property is 

not privileged to be there.

Last, a person lawfully evicted from property -- and 

retaining no further proprietary interest in the property --

will stand in the shoes of a trespasser and not have the right 

to challenge a search. See generally Hinton, supra, 216 N.J.

211. There, in accordance with the Anti-Eviction Act, the 

Tenant Hardship Act, and the Fair Eviction Notice Act, a 

landlord obtained from a Superior Court judge a warrant of 

removal, which instructed “a Special Civil Part Officer to 

‘dispossess the tenant and place the landlord in full possession 

of the premises.’” Id. at 216, 224. The warrant, placed under 
24

the door of the tenant’s apartment, directed the tenant to 

remove all possessions within three days of the issuance of the 

warrant. Id. at 217. After the expiration of the three days, 

during which the tenant took no action to vacate the premises, a 

Special Civil Part Officer entered the apartment to change the 

locks and inspect the premises. Id. at 218. During the 

inspection, the Special Civil Part Officer observed illicit 

drugs and called the police, who entered and searched the 

apartment. Id. at 218-19.

In that “novel case aris[ing] in unusual circumstances,” we 

engaged in a reasonable expectation of privacy analysis and 

concluded that the defendant -- who claimed the status of a 

tenant -- did not have a right to object to the search. Id. at 

235-36. The novelty of that case required that we examine the 

reach of the defendant’s privacy interests. Having determined 

that the evicted tenant had no protectible privacy right to

object to an entry of the police onto the premises in such 

circumstances, if a similar case arises, the simple answer will 

be that the former tenant’s status is equivalent to that of a 

trespasser and he will not have standing to challenge the 

search. We reject the State’s reading of Hinton because it 

conflates New Jersey’s standing precedents with the federal 

standard and would upend our long-established jurisprudence in 

this area. 
25

The standard for proving that a building is abandoned or 

that a defendant is a trespasser is straightforward. If the 

State can establish that, “in light of the totality of the 

circumstances, a police officer ha[d] an objectively reasonable 

basis to believe a building [was] abandoned,” Brown, supra, 216 

N.J. at 532, or “an objectively reasonable basis to believe [the 

defendant] was a trespasser,” id. at 535, a defendant will not 

have standing to challenge a search.

We must not forget that the issue here is merely whether 

defendant had standing to challenge the search. The police can 

always search a building or an apartment armed with a lawfully 

issued warrant or pursuant to an exception to the warrant 

requirement, such as when exigent circumstances require 

immediate action to preserve evidence or ensure the safety of an

individual or the public. See, e.g., State v. Edmonds, 211 N.J.

117, 129-30 (2012). When in doubt, the safest course for law 

enforcement -- and one consonant with the liberty interests of 

our citizens -- is to secure a warrant when doing so is 

practicable.

E.

We now apply the standing principles discussed above to the 

facts before us. We conclude that defendant had automatic 

standing to challenge the search of the second-floor apartment 

at 77 Grant Avenue because he was charged with possessory drug 
26

offenses, see Alston, supra, 88 N.J. at 228, and because the 

State failed to establish that Sergeant Trowbridge had an 

objectively reasonable basis to believe that the apartment was 

abandoned or that defendant was a trespasser, see Brown, supra, 

216 N.J. at 532. 

For sure, the police had a reasonable basis to believe that 

the second-floor apartment was being used in a drug-distribution 

scheme. Markees King was observed in that apartment immediately 

before he engaged in what appeared to be two hand-to-hand drug 

transactions outside the building. Absent evidence to the 

contrary, King’s presence in the apartment was an indication

that he was a resident of or had been invited onto the premises. 

As noted earlier, “[a] home is not deemed ‘abandoned’ merely 

because a person is dealing drugs from it.” Brown, supra, 216 

N.J. at 534. 

Also of importance is the fact that the outside door to the 

building was locked and that Sergeant Trowbridge gained access 

by having the first-floor tenant open the door. The locked 

outside door was evidence that the building’s residents intended 

to keep the public from entering even the common areas without 

invitation. Additionally, when Sergeant Trowbridge arrived on 

the second-floor landing, the door to the apartment was ajar. 

Before entering, he could see a couch and debris. After 

entering the apartment, he observed another couch, Timberland 
27

boots, a pair of Nike sneakers, a backpack, a television and 

video gaming system, and clothes draped on a couch and strewn on 

the floor along with a cigarette pack, a soda bottle, and mail.

Regardless of the disarray in the apartment and the fact 

that it was not fully furnished, there were clear signs that 

someone occupied it. The police did not contact the landlord to 

determine whether the second-floor apartment had been leased, 

and nothing in the record indicates that the first-floor 

resident was asked about the status or possible occupants of the 

upstairs apartment. Nothing in the record suggests that 

defendant was not an invitee in the apartment, and indeed the

State argued at trial that the mail addressed to defendant found 

inside the apartment was evidence of his presence in the 

apartment.

We hold that, in light of the totality of the 

circumstances, the police did not have an objectively reasonable 

basis to believe that the second-floor apartment was abandoned. 

Importantly, at the suppression hearing, the prosecutor did 

not argue that defendant lacked standing to challenge the search 

on the basis that the apartment was abandoned. Instead, the 

prosecutor contended that the police conducted a lawful search 

pursuant to the exigent-circumstances and protective-sweep 

exceptions to the warrant requirement. The trial court never 

addressed the substantive grounds on which the prosecutor 
28

attempted to justify the search. The trial court, moreover, did 

not apply our well-established principles governing standing. 

Rather, the court turned to the reasonable expectation of 

privacy test, typically used in federal courts, and then came to 

a conclusion -- not supported by the evidence -- that the 

apartment was vacant.

Like the Appellate Division, we conclude that the trial 

court erred in its analysis and therefore a new suppression 

hearing must be conducted. See Randolph, supra, 441 N.J. Super.

at 556. We also agree with the Appellate Division that at the 

new hearing both the State and defendant should be afforded the 

opportunity to present evidence concerning the prosecutor’s 

claimed justification for the warrantless entry and search.4 Id.

at 555-56. A full record should be developed to determine 

whether the exigent-circumstances or protective-sweep doctrine,

or both, justified the entry and search and, if so, the scope of 

 

4 The panel’s decision to remand for a new suppression hearing 

was prompted, in part, by its conclusion that the trial court 

had erred in barring the defense from calling Detective Stambuli

to testify about Bentley’s allegedly inoperable cell phone. 

Randolph, supra, 441 N.J. Super. at 554. We agree with the 

panel that Detective Stambuli should not have been kept off the 

stand. Defendant had the right to challenge Detective Goodman’s 

credibility. Detective Stambuli’s proffered testimony, 

seemingly, would have contradicted Detective Goodman’s account 

that he overheard Bentley speaking into the cell phone, saying, 

“they’re coming in, they’re at the door now.” The State 

hypothesized that the call was intended to alert defendant, who 

remained in the building. 
29

the search. On this new record, the trial court will make the 

appropriate credibility and factual findings. We express no 

view on the merits of the issues to be decided on remand.

IV.

We now consider whether the trial court erred in not 

instructing the jury on “mere presence” and, if so, whether the 

failure to give the charge denied defendant a fair trial.

In summation, the prosecutor argued that the jury should

conclude that defendant was guilty of possession with intent to 

distribute drugs based on (1) the discovery of drugs in the 

second-floor apartment along with mail addressed to defendant,

albeit to a different address, (2) Sergeant Trowbridge’s hearing 

the sound of someone running from the second to the third floor, 

and (3) the ultimate arrest of defendant “hiding” in the thirdfloor apartment.

Defendant requested that the trial court read to the jury 

the Model Charge that instructs that a defendant’s “mere 

presence” at the scene, standing alone, is insufficient to prove 

guilt. The court denied that request. The Model Charge on 

accomplice liability indicates that the “mere presence” charge 

should be given when appropriate. The Model Charge on “mere 

presence,” in part, provides:

Mere presence at or near the scene does not 

make one a participant in the crime, nor does 

the failure of a spectator to interfere make 
30

him/her a participant in the crime. It is, 

however, a circumstance to be considered with 

the other evidence in determining whether 

he/she was present as an accomplice. Presence 

is not in itself conclusive evidence of that 

fact. Whether presence has any probative 

value depends upon the total circumstances. 

To constitute guilt there must exist a 

community of purpose and actual participation 

in the crime committed.

[Model Jury Charge (Criminal), “Liability for 

Another’s Conduct” (N.J.S.A. 2C:2-6) (May 

1995).]

The court did not instruct the jury on accomplice liability

but did give the Model Charge on constructive and joint

possession concerning the drugs found in the second-floor 

apartment. The court stated:

Constructive possession means possession in 

which the possessor does not physically have 

the item on his or her person, but is aware 

that the item is present and is able to 

exercise intentional control or dominion over 

it.

So, someone who has knowledge of the character 

of an item and knowingly has both the power 

and the intention at a given time to exercise 

control over it, either directly or through 

another person or persons, is then in 

constructive possession of that item.

[Cf. Model Jury Charge (Criminal), 

“Possession” (N.J.S.A. 2C:2-1) (June 2014).]

The Appellate Division “recognize[d] that the model jury

charge on constructive possession does not include a charge on 

mere presence,” Randolph, supra, 441 N.J. Super. at 561, yet

nevertheless concluded that the trial court erred in not giving 
31

the “mere presence” charge in the circumstances of this case, 

particularly given the jury’s inquiry into “the relationship 

between [defendant] and tenant, [defendant] and [King], [King] 

and tenant,” id. at 558. To support that conclusion, the panel 

cited a number of cases indicating that, in certain 

circumstances, the “mere presence” charge may further elucidate

principles related to constructive possession. Id. at 558-62; 

see State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992)

(“[C]onstructive possession cannot be based on mere presence at 

the place where contraband is located. There must be other 

circumstances or statements of defendant permitting the 

inference of defendant’s control of the contraband.”), aff’d, 

133 N.J. 481 (1993); see also State v. Palacio, 111 N.J. 543, 

549-54 (1988); State v. Shipp, 216 N.J. Super. 662, 664-65 (App.

Div. 1987).

The trial court was clearly mistaken in its belief that the 

“mere presence” charge is given only in conspiracy cases. No 

constraint barred the trial court from giving the “mere 

presence” charge, and the better course would have been to give 

the charge to disabuse the jury of any possible notion that a 

conviction could be based solely on defendant’s presence in the 

building. 

The appellate panel expressed “serious doubt about whether 

the jurors’ verdicts [were] based on a misunderstanding of the 
32

law” and therefore vacated defendant’s convictions and remanded 

for a new trial. Randolph, supra, 441 N.J. Super. at 561-62.

Unlike the panel, we do not believe that the failure to give the 

“mere presence” charge was “clearly capable of producing an 

unjust result,” see R. 2:10-2, even if giving that additional 

charge would have been advisable. We come to that conclusion 

because the jurors were instructed that defendant could not be 

found guilty unless the State proved (1) defendant knew that the 

drugs were in the second-floor apartment and (2) defendant had 

the power and intention to exercise control over the drugs. The 

charge, as a whole, sufficiently informed the jury -- without 

using the words “mere presence” -- that defendant’s presence in

the building, standing alone, would be insufficient to establish 

guilt. See State v. Montesano, 298 N.J. Super. 597, 612-15 

(App. Div.), certif. denied, 150 N.J. 27 (1997) (holding that 

possession and constructive-possession charges, read in their

entirety, “left no room to doubt that ‘mere presence’ was 

insufficient to bring about a finding of the necessary elements 

of possession”).

Accordingly, we reverse the judgment of the Appellate 

Division granting defendant a new trial. We remind our trial 

courts, however, that every precaution should be taken to fully 

inform the jury on all applicable legal principles that will 

assist it in fairly deciding the issues. See State v. Brown, 
33

138 N.J. 481, 522 (1994) (“Our decisions have consistently 

emphasized that clear and correct jury instructions are 

essential for a fair trial.”). Although the absence of the 

“mere presence” charge did not deny defendant a fair trial, 

giving the charge would have done no harm and possibly would 

have been of some benefit. In the event defendant is granted a 

new trial based on the outcome of the new suppression hearing, 

the “mere presence” charge should be included in the 

instructions read to the jury.

V.

Last, we agree with the Appellate Division that, if there 

is a retrial, the trial court “must carefully consider whether 

it is appropriate to charge flight, and, if so, must tailor the 

charge to the facts of the case to prevent juror confusion.” 

Randolph, supra, 441 N.J. Super. at 563-64. 

At trial, defendant requested the flight charge for reasons 

not articulated or evident on the record. That clearly opened 

the door for the prosecutor to argue flight in summation, which 

the prosecutor did to good effect. In his closing statement, 

the prosecutor told the jury:

You can consider . . . the fact that 

[defendant] ran from [the] second floor to 

[the] third floor as consciousness of guilt. 

. . . [I]n so running[, he] was putting 

distance between himself and the drugs. He 

was putting distance between himself and those 

police officers, who he knew, based upon Mr. 
34

Bentley’s phone call, were on their way into 

[the building].

Defendant did not object to this argument.

No one actually observed defendant fleeing from the police 

-- that inference had to be drawn from Sergeant Trowbridge’s 

testimony that he heard someone running from the second to the 

third floor after he gained entry into the vestibule of the 

building. Although that fact might not have warranted the 

withholding of a flight charge, another fact should have given 

the trial court pause. At the very same time that the Jersey 

City police was conducting its investigation and surveillance of 

77 Grant Avenue for drug activity, United States Marshals had 

the building under watch for the purpose of executing a warrant 

to arrest defendant on a homicide charge. Indeed, as Sergeant 

Trowbridge was exiting the second-floor apartment, the Marshals 

were rushing to the third floor to arrest defendant.

That raises the inevitable question. If defendant, in 

fact, was fleeing up the stairs, was his flight prompted by an 

attempt to escape detection for drug dealing or for a homicide? 

The jury never learned that the United States Marshals were on 

defendant’s trail and arrested him in the building at the time 

of the Jersey City police investigation. Of course, such a 

disclosure would have been highly prejudicial given that 

defendant was on trial for drug offenses and not for committing 
35

a homicide. Because of what it did not know, the jury could not 

give weight to evidence that any flight might have been 

motivated for reasons other than the drug investigation. 

In accordance with the Model Charge on flight, the court 

instructed the jury:

If you find that the defendant, fearing that 

an accusation or arrest would be made against 

him on the charges involved in the indictment, 

took refuge in flight for the purpose of 

evading the accusation or arrest on that 

charge, then you may consider such flight, in 

connection with all the other evidence in the 

case, as an indication or proof of 

consciousness of guilt.

[(emphasis added). See Model Jury Charge 

(Criminal), “Flight” (May 2010).]

Flight from the scene of a crime, depending on the

circumstances, may be evidential of consciousness of guilt, 

provided the flight pertains to the crime charged. State v. 

Mann, 132 N.J. 410, 418-19 (1993); see also State v. Wilson, 57 

N.J. 39, 49 (1970) (“A jury may infer that a defendant fled from 

the scene of a crime by finding that he departed with an intent 

to avoid apprehension for that crime.” (emphasis added)). The 

Model Jury Charge, our jurisprudence, and common sense all 

suggest that flight from the scene for reasons unrelated to the 

crime charged would not be probative of guilt on that charge. 

The difficult task for a jury, of course, is determining a 

defendant’s motivation. Flight will have “legal significance” 
36

if the circumstances “reasonably justify an inference that it 

was done with a consciousness of guilt” to avoid apprehension on 

the charged offense. State v. Ingram, 196 N.J. 23, 46 (2008) 

(quoting Mann, supra, 132 N.J. at 418-19). A jury must be able 

to draw reasonable inferences from the evidence; it may not be 

left to speculate. We agree with the Appellate Division that 

evidence of flight must be “intrinsically indicative of a 

consciousness of guilt.” Randolph, supra, 441 N.J. Super. at 

562 (quoting State v. Pindale, 249 N.J. Super. 266, 283 (App.

Div. 1991)). We disagree, however, with its assertion that 

evidence of flight “must unequivocally support a reasonable 

inference” of the defendant’s guilt. Id. at 563 (emphasis 

added). There is no support in our jurisprudence for so high a 

bar to the admission of such evidence.

In conclusion, should the case be retried, the trial court 

must cautiously consider whether, given the peculiar facts in 

this case, a flight charge is appropriate. In doing so, the 

court must determine whether the probative value of evidence of 

flight is “substantially outweighed by the risk of . . . undue 

prejudice, confusion of issues, or misleading the jury,”

N.J.R.E. 403(a), and whether a carefully crafted limiting 

instruction could ameliorate any potential prejudice.

VI.

For the reasons expressed, we affirm the Appellate 
37

Division’s judgment reversing the trial court’s denial of 

defendant’s suppression motion but reverse its judgment granting 

a new trial based on the trial court’s failure to charge the 

jury on “mere presence.” We remand to the trial court for 

proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, 

FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s 

opinion.