STATE OF NEW JERSEY VS. LOUIS v. WILLIAMS (16-11-0834, MERCER COUNTY AND STATEWIDE) ( 2019 )


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  •                NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2490-17T4
    STATE OF NEW JERSEY,
    APPROVED FOR PUBLICATION
    Plaintiff-Respondent,
    August 19, 2019
    v.                                          APPELLATE DIVISION
    LOUIS V. WILLIAMS,
    Defendant-Appellant.
    ____________________________
    Submitted January 15, 2019 – Decided August 19, 2019
    Before Judges Rothstadt, Gilson and Natali.
    On appeal from the Superior Court of New Jersey,
    Law Division, Mercer County, Indictment No.
    16-11-0834.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Michele Erica Friedman, Assistant Deputy
    Public Defender, of counsel and on the brief).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Valeria Dominguez, Deputy Attorney
    General, of counsel and on the brief).
    The opinion of the court was delivered by
    NATALI, J.S.C. (temporarily assigned).
    The central issue in this appeal is whether a resident of a boarding or
    rooming house has a reasonable expectation of privacy in areas beyond his or
    her bedroom door. Following an unsuccessful motion to suppress marijuana
    and a firearm seized from his room, defendant Louis V. Williams pled guilty to
    second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1).
    Related possessory weapons charges and a disorderly-persons charge of
    possessing less than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4), were
    dismissed.1   Defendant was sentenced to five years of imprisonment with
    forty-two months of parole ineligibility, and now appeals from the order
    denying his motion to suppress.        Based on the proofs elicited at the
    suppression hearing, we conclude defendant had a reasonable expectation of
    privacy in the common areas of his residence, and it was unreasonable for the
    police to enter the premises repeatedly without a warrant, exigent
    circumstances, or a lawful right of entry. Accordingly, we reverse.
    I.
    The following facts are gleaned from the suppression hearing, where a
    single witness, Detective Carlos Estevez of the New Jersey State Police,
    1
    A second-degree charge of certain persons not to have weapons, N.J.S.A.
    2C:39-7(b)(1), was amended to the possessory weapons offense to which
    defendant pled guilty.
    A-2490-17T4
    2
    testified. The motion judge found that Estevez "portrayed candor," "bore an
    honest demeanor," and that his testimony was "credible."
    At around 9:30 a.m. on March 19, 2016, Estevez was in his office in
    Trenton when he heard gunshots from a nearby neighborhood. After checking
    the immediate vicinity on foot, he entered a police vehicle with his superior,
    Sergeant Sansone.2      Dispatch reports from the Trenton Police Department
    indicated that the gunshots were fired at a nearby bar, and that the suspected
    shooter was an African-American male named "Louis" with an alias of "Big"
    who was wearing a grey hooded sweatshirt and who had fled to, and lived at, a
    dwelling on Spring Street.
    The officers drove to the Spring Street dwelling, where they met a
    Trenton Police Department officer outside. Estevez testified that from the
    vantage point of the sidewalk, the structure appeared to be an "attached row
    home" that "could be" a "normal single family home" or a "multi" family home
    because "[t]here [were] two floors."         Estevez could not "tell [if it was] a
    boarding house" from the sidewalk, but testified that "other boarding houses"
    he observed in Trenton had similar external appearances.            According to
    Estevez, the front door was equipped with a lock, but the door was unlocked at
    2
    Sergeant Sansone's first name is not provided in the record.
    A-2490-17T4
    3
    that time and "wasn't secured at all, not by [a] latch, not by [a] doorknob, not
    by [a] lock," and it simply "swung open" when he knocked on it. 3
    When the door opened, the three officers "converged" into what Estevez
    described as a long hallway with a stairway leading to the second floor directly
    in front of him. Estevez noticed multiple doors to his left, all of which had
    padlocks on them, which led him to believe the building was being used as "a
    boarding house because usually boarding houses are multi-apartment
    dwellings." The officers then "cleared the common area[s]" for weapons and
    to "make sure" that the suspect was not "hiding . . . in that house unlawfully."
    The "common areas" the officers searched included the downstairs hallway, "a
    common bathroom" upstairs, and "a short hallway" by the bathroom.
    After clearing the common areas, Estevez and Sansone left the building
    and returned to their vehicle to search for the suspect in the surrounding area.
    During that "loop" around the area, the Trenton Police Department officer left
    the building, and Estevez and Sansone received a police dispatch report
    3
    At the suppression hearing, Estevez stated that he did not remember whether
    there was "a screen door" in front of "the main door." We note, however, that
    the record contains an affidavit in support of a search warrant, see infra p. 7,
    which was marked for identification but not entered into evidence, in which
    Estevez certified that the building had "a white storm dorm with clear glass in
    the middle" and a "front door" that was "white with a small half-moon window
    on the top of it." The affidavit also states that "[t]o the left of the front door"
    is a black mailbox underneath the street number assigned to the house.
    A-2490-17T4
    4
    indicating that a crime scene was established at the bar and that "spent shell
    cases" were recovered, which Estevez interpreted as confirming his belief that
    "a gun was discharged" and "there was an actual shooting."            Estevez also
    testified that he believed he was involved in an "active shooting" investigation.
    Estevez and Sansone returned to Spring Street and re-entered the
    building. Estevez proceeded to knock on two interior doors, one on the first
    floor and one on the second floor, both of which were answered by female
    residents who denied having any male roommates. Estevez then went to the
    second floor's "middle room door."
    As he approached that room, Estevez heard movement and smelled
    marijuana through the door, which he did not notice the first time he entered
    the dwelling. Estevez knocked on the door, announced that he was a police
    officer, and "told the individual to go ahead and answer the door."
    Defendant, who was unknown to Estevez at the time, opened the door
    shirtless but wearing pants.    The door swung inward toward a room that
    Estevez stated was approximately eight feet by eight feet.         According to
    Estevez, the smell of marijuana "drastically increased" when defendant opened
    the door, and defendant was sweating and breathing heavily as if "he just did
    some type of exercise." Estevez also stated that, based on his experience in
    A-2490-17T4
    5
    shooting investigations, he knew that individuals tend to remove their shirts to
    avoid identification, and that his suspicions were heightened because:
    [Defendant was] sweating. It's . . . early in the
    morning in March, still cold out. That didn't make
    sense to me. And then he was . . . breathing heavy.
    So at this point I asked him why and he told me he
    just woke up. So, again, the hairs on the back of my
    neck are standing up, something's not right,
    something's not fitting here. And not to mention, the
    odor of the burnt ember marijuana at this point is
    coming out of the room.
    Estevez stated that while he was standing in "the doorway," which he
    clarified to mean "the common hallway area," he looked into defendant's
    "single bedroom" and observed "a mattress on the floor," a "window on the
    rear wall," a "dresser" by the window, and "objects scattered around." Estevez
    informed defendant that he was conducting an investigation and asked
    defendant to provide identification. Defendant responded by stating that he
    "had to go get his wallet." As Estevez explained:
    [Defendant] then walked towards the dresser on the
    left side of the room, [and] went to grab the wallet.
    And at that point, -- now, again, this is a shooting
    investigation. I'm all over his hands. I'm watching his
    hands closely, you know, for officer safety. It's small
    quarters. He goes to the back of the room. I'm
    watching his hands as he grabs his wallet. I see this
    small bag of marijuana right next to his wallet.
    A-2490-17T4
    6
    Estevez testified that from his vantage point the marijuana was "in front of the
    wallet" on the dresser, and that once he saw the marijuana, he knew that
    defendant was "going to be under arrest."
    As defendant grabbed his wallet and "turn[ed] around to provide . . . the
    identification," Estevez simultaneously "stepp[ed] into the apartment . . . to
    effectuate the arrest." According to Estevez, he and defendant:
    met right there in the room. [It was] a matter of a
    couple of steps and, again, it's close quarters, close
    proximity. I want to make sure I have control for my
    safety, for his safety, [and] the safety of the other
    officer.
    Defendant handed his wallet and driver's license to Estevez, who noticed
    defendant's name was Louis Williams. Estevez testified that at that point,
    "everything[] [was] starting to match up." He then placed defendant under
    arrest for possession of marijuana, conducted a protective sweep of the
    bedroom, and applied for a warrant to search defendant's room for drugs,
    weapons, and other items. After obtaining the warrant, other police officers
    searched defendant's bedroom and seized a bag of marijuana and a "Lorcin .25
    caliber semi-automatic handgun with a defaced serial number."
    The court reserved decision at the conclusion of the suppression hearing.
    In its subsequent oral opinion, the court explained that it accepted Estevez's
    testimony "as fact." Based on that testimony, the court found that "the exterior
    A-2490-17T4
    7
    door" of the Spring Street dwelling "was not secured," that when Estevez
    knocked on it, "it swung open," and that the dwelling was being used as a
    boarding house. 4   The court determined that the constitutional protections
    against unreasonable searches and seizures "only extend to such areas . . . in
    which an individual has a reasonable expectation of privacy," and that those
    safeguards did not extend to "the building in general" or "the common areas"
    because "those areas are accessible and used by other occupants."
    After finding "defendant did not have any privacy right to that common
    hallway of the boarding house," the court concluded that the officers' actions
    "were objectively reasonable as they had a lawful right to be at that location
    where they saw contraband in plain view," and Estevez inadvertently observed
    the marijuana. Therefore, the court held that "there was no unlawful search or
    seizure prior to the application for a search warrant," and that "all of the
    information obtained provided a legitimate basis for Estevez to apply for and
    4
    With certain exceptions not relevant here, a boarding house is defined as
    "any building . . . which contains two or more units of dwelling space arranged
    or intended for single room occupancy . . . wherein personal or financial
    services are provided to the residents . . . ."          N.J.S.A. 55:13B-3(a).
    Contrariwise, N.J.S.A. 55:13B-3(h) defines "[r]ooming house" as "a boarding
    house wherein no personal or financial services are provided to the residents."
    Aside from Estevez's testimony that the "attached row home" was a "boarding
    house," the record does not contain evidence indicating whether personal or
    financial services were provided to the residents of the Spring Street dwelling.
    For purposes of our decision, we discern no substantive distinction in
    characterizing the Spring Street residence as a rooming or boarding house.
    A-2490-17T4
    8
    obtain a search warrant for the premises."      Accordingly, the court denied
    defendant's motion to suppress.
    Defendant raises the following issue on appeal:
    POINT I
    THE OFFICERS' WARRANTLESS ENTRY INTO
    THE BUILDING WITH A LOCK ON ITS FRONT
    DOOR WAS OBJECTIVELY UNREASONABLE.
    II.
    "An appellate court reviewing a motion to suppress evidence . . . must
    uphold the factual findings underlying the trial court's decision, provided that
    those findings are 'supported by sufficient credible evidence in the record.'"
    State v. Sencion, 
    454 N.J. Super. 25
    , 31 (App. Div. 2018) (quoting State v.
    Boone, 
    232 N.J. 417
    , 425-26 (2017)). We defer to the motion judge's factual
    findings when supported by sufficient evidence in the record "because the
    motion judge, unlike an appellate court, has the 'opportunity to hear and see
    the witnesses and to have the "feel" of the case, which a reviewing court
    cannot enjoy.'" State v. Gonzalez, 
    227 N.J. 77
    , 101 (2016) (quoting State v.
    Johnson, 
    42 N.J. 146
    , 161 (1964)). We also defer to the court's credibility
    findings. State v. Locurto, 
    157 N.J. 463
    , 472 (1999). "We owe no deference,
    however, to conclusions of law made by trial courts in suppression decisions,
    which we instead review de novo." 
    Sencion, 454 N.J. Super. at 31-32
    .
    A-2490-17T4
    9
    Defendant maintains that "the officers' warrantless entry [into] the
    building was unconstitutional at its inception" and the evidence discovered
    "must be suppressed as fruit of the poisonous tree." Citing Sencion and State
    v. Jefferson, 
    413 N.J. Super. 344
    (App. Div. 2010), defendant argues that he
    "had a reasonable expectation of privacy in [the] common hallways" and the
    officers violated his federal and state constitutional rights when they made a
    warrantless entry into the building.
    The State, principally relying on State v. Smith, 
    37 N.J. 481
    (1962), and
    a series of federal cases, contends that the police action here was constitutional
    because the officers "had a lawful right to be in the common areas without a
    warrant while conducting their investigation of the shooting" and "defendan t
    had no reasonable expectation of privacy in the common hallway of the
    unlocked multi-unit building." According to the State, once the police were in
    a "lawful vantage point of the common hallway," they observed the marijuana
    "in plain view on defendant's dresser," and subsequently obtained a lawful
    warrant that led to the discovery and seizure of the gun.
    III.
    "The Fourth Amendment to the United States Constitution and Article I,
    Paragraph 7 of the New Jersey Constitution require that police officers obt ain a
    warrant before conducting a search, unless that search falls into a recognized
    A-2490-17T4
    10
    exception to the warrant requirement." 
    Sencion, 454 N.J. Super. at 32
    .
    Further, "the Fourth Amendment has drawn a firm line at the entrance to the
    house. Absent exigent circumstances, that threshold may not reasonably be
    crossed without a warrant." State v. Penalber, 
    386 N.J. Super. 1
    , 11 (App. Div.
    2006) (quoting Payton v. New York, 
    445 U.S. 573
    , 590 (1980)).
    "A search without a warrant is presumptively invalid," State v. Mann,
    
    203 N.J. 328
    , 340 (2010), and "the State bears the burden of proving by a
    preponderance of the evidence that a warrantless search or seizure 'falls within
    one of the few well-delineated exceptions to the warrant requirement.'" State
    v. Elders, 
    192 N.J. 224
    , 246 (2007) (quoting State v. Pineiro, 
    181 N.J. 13
    , 19-
    20 (2004)). One exception is the plain view doctrine. 5 Sencion, 454 N.J.
    Super. at 32 (quoting State v. Pena-Flores, 
    198 N.J. 6
    , 11 (2009)). Probable
    cause is necessary to invoke the plain view doctrine, State v. Johnson, 
    171 N.J. 192
    , 208 (2002) (quoting Arizona v. Hicks, 
    480 U.S. 321
    , 327 (1987)), which
    is "a 'well grounded' suspicion that a crime has been or is being committed."
    
    Id. at 214
    (quoting State v. Sullivan, 
    169 N.J. 204
    , 211 (2001)).
    In order to satisfy the plain view doctrine when this case was decided,
    the State was required to establish: 1) a police officer was "lawfully in the
    5
    Other than the plain view doctrine, the State does not allege on appeal that
    any other exception to the warrant requirement applied, such as the community
    caretaker doctrine or exigent circumstances.
    A-2490-17T4
    11
    viewing area"; 2) the officer "discover[ed] the evidence 'inadvertently'"; and 3)
    it was "'immediately apparent' to the police that the items in plain view were
    evidence of a crime, contraband, or otherwise subject to seizure." 
    Mann, 203 N.J. at 341
    (quoting State v. Bruzzese, 
    94 N.J. 210
    , 236 (1983)). 6          "The
    question whether property in plain view of the police may be seized . . . must
    turn on the legality of the intrusion that enables them to perceive and
    physically seize the property in question." 
    Johnson, 171 N.J. at 208
    (alteration
    in original) (quoting Texas v. Brown, 
    460 U.S. 730
    , 737 (1983)).
    The parties do not dispute that Estevez discovered the marijuana
    inadvertently once defendant opened his bedroom door, or that it was
    immediately apparent to Estevez that the marijuana was contraband subject to
    seizure. Accordingly, the issue on appeal is whether Estevez had a lawful
    right to be in the second floor hallway where he initially smelled the marijuana
    that led to his observations, defendant's arrest, and the issuance of the warrant
    prompting the seizure of the defaced gun. In deciding if Estevez was lawfully
    in that viewing area, we must determine whether defendant had a reasonable
    expectation of privacy in the common hallway, such that he is entitled to the
    6
    The New Jersey Supreme Court eliminated the inadvertence prong in
    November 2016. 
    Gonzales, 227 N.J. at 82
    . "That prong is satisfied if the
    police did not 'know in advance the location of the evidence and intend to
    seize it . . . .'" 
    Johnson, 171 N.J. at 211
    (quoting Coolidge v. New Hampshire,
    
    403 U.S. 443
    , 470 (1971)).
    A-2490-17T4
    12
    protections of the Fourth Amendment of the United States Constitution and
    Article I, Paragraph 7 of the New Jersey Constitution.
    "One seeking to invoke the protection of the [F]ourth [A]mendment must
    establish that a reasonable expectation of privacy was invaded by government
    action." State v. Marshall, 
    123 N.J. 1
    , 66 (1991). To determine whether an
    expectation of privacy is protectable, federal courts "employ[] a two-prong
    test: first, a person must have exhibited an actual expectation of privacy, and
    second, the expectation must be one that society is prepared to recognize as
    reasonable or legitimate." 
    Sencion, 454 N.J. Super. at 32
    . "Our Supreme
    Court, however, has defined an objective test asking only whether a person has
    a reasonable expectation of privacy." 
    Ibid. Such "'[e]xpectations of
    privacy
    are established by general social norms,' and must align with the 'aims of a free
    and open society.'" State v. Taylor, 
    440 N.J. Super. 515
    , 523 (App. Div. 2015)
    (quoting State v. Hempele, 
    120 N.J. 182
    , 200-01 (1990)).
    Our courts have not squarely determined whether common areas in a
    rooming or boarding house are within the zone of privacy protected by the
    Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution.7
    7
    The cases that most nearly address this issue are State v. Ball, 
    219 N.J. Super. 501
    (App. Div. 1987), and State v. Berlow, 
    284 N.J. Super. 356
    (Law Div.
    1995). But in Ball, the question was whether the defendant had a reasonable
    expectation of privacy in the unenclosed area behind a boarding house where
    (continued)
    A-2490-17T4
    13
    Instead, our case law has focused primarily on multi-family apartment
    buildings.8
    In discussing a resident's expectation of privacy in an apartment
    building, we observed that our "Supreme Court has indicated that generally in
    'multi-occupancy premises . . . none of the occupants can have a reasonable
    expectation of privacy in areas that are also used by other occupants.'"
    
    Penalber, 386 N.J. Super. at 10
    (quoting 
    Johnson, 171 N.J. at 209
    ).          The
    Penalber court also noted, as the State does here, that a number of federal
    cases permit the police to make warrantless entry into a hallway of an
    apartment house "because a tenant can have no reasonable expectation of
    privacy in an area frequented by occupants of the other apartment unit, the
    (continued)
    his pickup truck was parked. See 
    Ball, 219 N.J. Super. at 506-07
    . In that
    context, we stated "[t]he curtilage concept has limited applicability with
    respect to such multi-occupancy premises because none of the occupants can
    have a reasonable expectation of privacy in the areas that are also used by
    other occupants." 
    Ibid. And in Berlow,
    the trial court determined there was
    "insufficient evidence" to find that the defendant, who was the landlord of a
    rooming house, "had no right of privacy in the area to which police sough t
    access," which was a "common area of a rooming house." Berlow, 284 N.J.
    Super. at 360.
    8
    For example, in State v. Walker, 
    213 N.J. 281
    (2013), the Court held that
    police officers "have a right to be . . . in the hallway of a public housing
    
    building," 213 N.J. at 296
    , specifically the hallway in front of defendant's
    "apartment" in a "public housing project in Newark." 
    Id. at 285.
    There is no
    indication that the residence on Spring Street is a public housing building or in
    a public housing area of Trenton.
    A-2490-17T4
    14
    landlord, deliverymen and visitors." 
    Ibid. Other courts, however,
    have held
    that "occupants of an apartment house have a reasonable expectation of
    privacy in a common hallway, at least where the door leading into the hallway
    is kept locked."    Ibid.; see also 
    Sencion, 454 N.J. Super. at 29-30
    , 32
    (suppressing the fruits of a police search effectuated by the use of an "entry
    tool" because "people have a reasonable expectation of privacy from a forced
    police entry into the locked common area of the apartment building," but
    noting that "[e]ven when strangers have access to the location, an expectation
    of privacy may well exist under the New Jersey Constitution"); 
    Jefferson, 413 N.J. Super. at 350-52
    (holding that "the police entered defendant's home when
    [an officer] wedged herself in the doorway" of an apartment that was normally
    kept locked, but which the defendant briefly opened, "and that they needed
    either a warrant or an exception from the warrant requirement of the federal
    and State constitutions to do so"); State v. Nunez, 
    333 N.J. Super. 42
    , 51 (App.
    Div. 2000) ("[T]he fact of whether a door is locked or unlocked [is] a far more
    reliable predictor of a reasonable expectation of privacy than the size of the
    building in which one resides.").
    Without distinguishing between apartment buildings and rooming or
    boarding houses, the State relies on several cases in asserting that "[a]
    policeman is not out-of-bounds when he is in the common passageway of a
    A-2490-17T4
    15
    multi-family house in the furtherance of an investigation." See 
    Smith, 37 N.J. at 496
    ; see also 
    Johnson, 171 N.J. at 209
    ("[T]he curtilage concept has limited
    applicability with respect to multi-occupancy premises because none of the
    occupants can have a reasonable expectation of privacy in areas that are also
    used by other occupants" (quoting 
    Ball, 219 N.J. Super. at 506-07
    )); State v.
    Brown, 
    282 N.J. Super. 538
    , 547 (App. Div. 1995) ("[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"); State v. Craft, 
    425 N.J. Super. 546
    , 550-52, 555 (App. Div. 2012).
    In Smith, the defendant was "arrested in a flat occupied by [his] mother
    on the third floor of a three-family house" in Newark. 
    Smith, 37 N.J. at 490
    .
    The Court concluded that "the presence of the detectives at the door to th e
    apartment itself involved no misconduct or invasion of the rights of anyone"
    because "[a]s to the owner, surely a policeman does not trespass when he
    enters the common areas in discharge of his duties," and as to the defendant's
    mother, who was a tenant, "it cannot be said that she was in possession of the
    passageway." 
    Id. at 496.
    The Court reached a similar conclusion in finding a
    "diminished expectation of privacy" in the porch of "an attached row house
    with multiple apartments . . . ." See 
    Johnson, 171 N.J. at 200
    , 209-10.
    A-2490-17T4
    16
    But the motion judge in this case, despite referring to defendant's
    bedroom at one point as his "apartment," specifically found that the Spring
    Street dwelling was a "boarding house." Based on the facts elicited at the
    suppression hearing, we conclude the State failed to establish that Estevez was
    in a lawful viewing area when he observed the marijuana because defendant
    had a reasonable expectation of privacy in the common hallway of the
    boarding or rooming house, as that area was not proven to be clearly open to
    the public. We stress that our decision is limited to the specific facts of this
    case, and further conclude the cases cited by the State, which primarily address
    either curtilage, or common areas of apartment buildings or similar self -
    contained multi-unit dwellings, are of limited utility in resolving the issues on
    appeal.   Those cases are factually and legally inapposite as the living
    arrangements at issue in those cases are dissimilar to defendant's boarding or
    rooming house, which Estevez described as resembling a single or multi -
    family home. This distinction is significant. Compare, e.g., United States v.
    Correa, 
    653 F.3d 187
    , 188 (3d Cir. 2011) (finding residents "of a multi-unit
    apartment building" had no "reasonable expectation of privacy in the building's
    common areas"), with Brown v. United States, 
    83 F.2d 383
    , 385-86 (3d Cir.
    1936) (concluding that a "private dwelling in which the proprietress" lived
    with her family was the "home" of the "roomers" who also lived there, and that
    A-2490-17T4
    17
    "so far as the unlawful search" of the house "affected [the roomers], it violated
    their constitutional rights")
    Indeed, several state and federal cases have held that hallways or other
    common areas in rooming or boarding houses are entitled to constitutional
    protections. See e.g., United States v. Booth, 
    455 A.2d 1351
    , 1353-54 (D.C.
    1983) (rejecting the argument that residents of a rooming house "lack[ed] a
    legitimate expectation of privacy in the front hall where [the officer] made his
    warrantless entry"); State v. Titus, 
    707 So. 2d 706
    (Fla. 1998) (concluding
    residents of a rooming house had a reasonable expectation of privacy in the
    common areas); Logan v. Commonwealth, 
    616 S.E.2d 744
    , on reh'g en banc,
    
    622 S.E.2d 771
    (Va. Ct. App. 2005) (government conceded rooming house was
    not open to the public). We acknowledge, however, that a number of state and
    federal courts have reached a contrary conclusion.       E.g., United States v.
    Anderson, 
    533 F.2d 1210
    (D.C. Cir. 1976); State v. Kechrid, 
    822 S.W.2d 552
    (Mo. Ct. App. 1992); State v. Smith, 
    154 A.3d 660
    , 666-67 (N.H. 2017)
    (finding roomers did not have a reasonable expectation of privacy in common
    areas because "the large number of tenants" in the rooming house, "the fact
    that each room had an individual number and a private lock, and [the roomers']
    custom of leaving the exterior door unsecured" outweighed the fact that the
    roomers had a "shared kitchen and bathroom").
    A-2490-17T4
    18
    After reviewing the state and federal authorities, we are persuaded by the
    Florida Supreme Court's reasoning in Titus. In that case, a police officer,
    without a warrant or consent, entered a side gate, then the back entrance of a
    two-story home that the officer knew was "a rooming house" to investigate an
    informant's tip that someone was smoking narcotics 
    inside. 707 So. 2d at 707
    .
    There was conflicting testimony as to whether the back entrance had a door,
    "but the residents kept their individual rooms locked," and "[t]he officer
    proceeded through a corridor to the common-area kitchen, where several
    people had gathered," some of whom were "neither residents nor guests thereof
    but who, according to unelaborated testimony, 'just came in off the street.'"
    
    Ibid. After the officer
    observed defendant, who was a resident of the rooming
    house, place "a pipe into his pocket" and "an invited guest . . . smoking crack
    cocaine through a pipe," defendant was arrested and charged with possessory
    drug offenses. 
    Ibid. In holding that
    defendant's motion to suppress the evidence obtained
    from the rooming house should have been granted, the court explained that the
    "mere fact that certain rooms traditionally associated with a home are shared
    by rooming house residents does not render the structure any less a home to
    those residents."   
    Id. at 708.
    The court concluded that the sharing of the
    common hallway by the residents did not deprive them of a reasonable
    A-2490-17T4
    19
    expectation of privacy in that hallway or in the common areas connected by it.
    
    Id. at 708-11.
    Instead, in limiting its holding to the "common hallways" in
    rooming houses, the court distinguished "common hallways in unlocked
    apartment buildings, which generally serve only to connect separate,
    self-contained living units typically complete with all of the traditional living
    areas (i.e., bathrooms, dining rooms, living rooms, kitchens, etc.)." 
    Id. at 711.
    The court explained,
    [i]nterior hallways in rooming houses are protected
    only by virtue of linking such traditional rooms within
    the house—they provide rooming house residents with
    the only means of access to these rooms, and are an
    inseparable feature of their "home." In other words, it
    is not any inherent nature of a hallway that controls,
    but rather what the hallway links (i.e. individual self-
    contained living units versus shared traditional living
    areas).
    [Ibid.]
    Here, the court's decision that defendant enjoyed no expectation of
    privacy in the hallway was based primarily, if not exclusively, on the fact that
    the closed front door to the residential structure on Spring Street was unlocked
    around 10:00 a.m. on March 19, 2016, and, according to Estevez, was
    unsecured as the "force of [his] knock" caused it to open. From that fact alone,
    the court concluded that the common areas, which the police twice entered,
    and specifically the second floor hallway outside defendant's room, were open
    A-2490-17T4
    20
    to the public, thereby eviscerating defendant's privacy interest. We believe the
    court's conclusion is unsupported for the following reasons.
    First, even if we ignore Estevez's certified statement in his warrant
    application that there were two, not one, closed front doors at the Spring Street
    dwelling, it is undisputed that the front door Estevez knocked on was closed,
    not open, and was equipped with a lock. The State elicited no facts at the
    suppression hearing to establish that the door was routinely left unlocked, that
    the public routinely entered the common areas, or that such an inference was
    reasonable based on any other evidence indicating the common area was open
    to the public. Cf. City of Evanston v. Hopkins, 
    71 N.E.2d 209
    (Ill. App. Ct.
    1947) (abstract) (upholding police entry into a rooming house where there was
    an open door and a "Public Telephone" sign at the entrance).
    As for the State's claim that an unlocked front door renders any
    expectation of privacy unreasonable, in our view, the fact that the front door
    was not locked, like the doors in Jefferson and Sencion were, while relevant, is
    not dispositive. As noted, Estevez confirmed that the front door possessed a
    lock and was closed when he first approached it. In addition, the lack of proof
    that the communal areas were open to the public supports the conclusion that
    defendant had a reasonable expectation of privacy in the second floor hallway.
    Compare 
    Berlow, 284 N.J. Super. at 360
    (noting that "the mere description" of
    A-2490-17T4
    21
    certain premises as a "rooming house" does not establish the dwelling is open
    to the public) and 
    Booth, 455 A.2d at 1354
    (concluding that rooming house
    residents "had a legitimate expectation of privacy in the front hallway of the
    house they shared, which was not obviously a rooming house open to the
    general public") with 
    Smith, 154 A.3d at 667
    (finding no expectation of
    privacy where roomers had a "custom" of leaving their front door unlocked).
    Here, the evidence showed only that the front door was unlocked around 10:00
    a.m. on March 19, 2016, but not at any other time.
    In addition, as Professor LaFave has observed, "the absence of a lock on
    the premises is typically viewed as manifesting that hallways and other
    common areas are open to the public when the place is an apartment building,
    hotel or motel, but not when the place is a one-unit residence." 1 Wayne R.
    LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b) p.
    745 (5th ed. 2012). In discussing living arrangements like those enjoyed by
    defendant, however, LaFave explained:
    With respect to a rooming house, the better view is
    that except in the case in which it is very obvious from
    other circumstances that the rooming house is open to
    the general public, a rooming house is to be treated in
    this respect as if it were a single-unit dwelling, so that
    an unlocked or even open outer door cannot be treated
    by the police as alone manifesting an invitation to
    enter.
    A-2490-17T4
    22
    [2 Wayne R. LaFave et al., Criminal Procedure §
    3.2(c) p. 89 n.118 (4th ed. 2015).]
    Based on Estevez's testimony, the residential structure on Spring Street
    was a rooming or boarding house with communal living arrangements, akin to
    the home in Titus. In that regard, we agree with the observation by the Titus
    court that "it is not any inherent nature of a hallway that controls, bu t rather
    what the hallway links (i.e., individual self-contained living units versus
    shared traditional living 
    areas)." 707 So. 2d at 711
    . Here, Estevez testified to a
    single communal bathroom connected by the hallway outside defendant's
    room. Further, although the record does not contain direct evidence that the
    home had a communal kitchen, the State did not establish that the rooms had
    separate kitchens considering Estevez's observation that defendant's spartan
    eight foot by eight foot room contained but a mattress, a window, a dresser,
    and personal property on the floor. See 
    Sencion, 454 N.J. Super. at 32
    ("The
    State bears the burden of justifying a warrantless search or seizure.").
    Finally, as noted, the police entered the Spring Street dwelling on two
    separate occasions.   To the extent there was any urgent need to cross the
    threshold of the home initially, such cause was addressed when the police
    cleared the common areas. The record contains no support for the warrantless
    reentry of the premises or the police's presence outside defendant's room, and
    we decline to endorse an "inroad[] upon the reasonable expectations of privacy
    A-2490-17T4
    23
    of the lesser situated of our citizens who are forced by economic circumstances
    to reside in rooming houses." See 
    Titus, 707 So. 2d at 710
    (quoting People v.
    Garriga, 
    596 N.Y.S.2d 25
    , 29 (App. Div. 1993)). Accordingly, we determine
    that society is willing to treat as private the space between a person's bedroom
    and bathroom in such settings.
    In sum, we conclude that because the police did not have a warrant, and
    the State failed to establish that the common areas of the Spring Street
    dwelling were open to the public, the officers' second entry that led to
    defendant's arrest and the seizure of the marijuana and gun was
    constitutionally impermissible. Therefore, the plain view doctrine does not
    justify the government's warrantless search. Thus, the State failed to carry its
    burden of establishing that an exception to the warrant requirement justified
    the entry into the home.
    Reversed.
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    24