State v. Amir Randolph(076506) (Hudson County and Statewide) , 228 N.J. 566 ( 2017 )

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 exigent-
circumstances 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).
1
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.
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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
1
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
2
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
3
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.
4
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
5
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
6
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 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
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.”
7
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?
. . . .
8
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 parole-
ineligibility 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
9
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
10
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.
11
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
12
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-
13
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
14
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
15
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
16
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).
17
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
18
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
19
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.
20
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,
21
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.
22
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
23
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.
24
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
25
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
26
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
27
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.
28
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 third-
floor 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
29
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
30
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
31
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,
32
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.
33
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
34
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”
35
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
36
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.
37