STATE OF NEW JERSEY VS. RONALD B. JOHNSON (16-11-2568, ATLANTIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4064-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD B. JOHNSON,
Defendant-Appellant.
_________________________
Argued March 6, 2019 – Decided April 2, 2019
Before Judges Alvarez and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. 16-11-2568.
Cody T. Mason, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Cody T. Mason, of counsel
and on the brief).
Melinda A. Harrigan, Assistant Prosecutor, argued the
cause for respondent (Damon G. Tyner, Atlantic
County Prosecutor, attorney; Melinda A. Harrigan, of
counsel and on the brief).
PER CURIAM
Defendant Ronald B. Johnson appeals from his conviction for third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), for
which he was sentenced to two years probation conditioned on serving a six-
month county jail term. Defendant's appeal focuses on the denial of his
suppression motion. The trial judge's factual findings are supported by
substantial credible evidence, State v. Rockford, 213 N.J. 424, 440 (2013), and
based on those facts, the judge's legal conclusions are correct. Accordingly, we
affirm.
We begin by summarizing the evidence presented at the suppression
hearing. The police were patrolling Texas Avenue in Atlantic City after
receiving complaints from neighbors and construction workers about vagrants
and drug users entering vacant houses on the street. Construction workers, who
were renovating a house on Texas Avenue, told the police they observed
evidence that someone had been breaking into the house after the construction
crew left for the day. The construction workers indicated that only the owner
and the construction crew had permission to be on the premises and that their
work hours were from the morning to the middle of the afternoon.
At about 7 p.m., the police checked the house, saw interior lights on and
the front door ajar, and they entered the house to check on it. They closed the
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front door and walked through the premises to be sure it was clear of intruders.
They saw no evidence that anyone was living in the house. After the police
finished checking the house, they turned off the lights.
As the police were heading for the front door intending to leave, a man
later identified as defendant knocked twice and then entered the house. On
seeing the police, defendant looked "startled" and tried to leave. According to
the testifying officer, defendant "did not have any construction equipment with
him [or] any construction clothing that would indicate that he was there to work
. . . in the residence." Nor did he question why the police were in the house, as
the police would expect if defendant were the owner. The police arrested
defendant, searched him incident to the arrest, and found cocaine on his person.
At the suppression hearing, defendant's uncle gave testimony designed to
establish that defendant had the right to enter the premises. However, the trial
judge found the uncle's testimony incredible, noting that the uncle smelled
strongly of alcohol during his testimony and the testimony itself was
contradictory. The judge found the police witness credible and concluded that
the police had probable cause to arrest defendant, and discovered the cocaine
during a lawful search incident to the arrest.
On this appeal, defendant presents the following point of argument:
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THE MOTION TO SUPPRESS EVIDENCE SHOULD
HAVE BEEN GRANTED BECAUSE THE OFFICERS
LACKED PROBABLE CAUSE TO BELIEVE
DEFENDANT WAS TRESPASSING.
We find no merit in that contention. Based on police testimony the trial
court found credible, even before defendant entered the house, the police had
enough information to support a reasonable belief that anyone who was not the
owner or a construction worker, and who entered the house after hours, was
probably a trespasser. When defendant entered the house, after hours, with no
sign of being a construction worker, and tried to leave as soon as he saw the
police, they had probable cause to believe that he was trespassing.
The cases defendant relies on are not on point. None of them involved a
situation in which a defendant entered a building, much less entered a building
under circumstances similar to this case. For example, in State v. Gibson, 218
N.J. 277 (2014), a police officer observed the defendant briefly leaning against
the outside of a building, which was insufficient to support a well-grounded
suspicion that he was trespassing. In State v. Dangerfield, 171 N.J. 446 (2002),
the defendant was "sitting on a bicycle between two buildings," activity that
could have been part of a legitimate visit to someone in the apartment complex.
In In re J.M., 339 N.J. Super. 244 (App. Div. 2001), the defendant was sitting
on a porch with two of the tenant's relatives. Contrary to defendant's argument
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here, the cases do not hold that the police must always question a suspect before
arresting him for trespassing.
In this case, the police essentially caught defendant in the act of
trespassing. Defendant entered an unoccupied house that was undergoing
renovation, at a time when the police had information that no one other than the
owner or a construction worker had permission to enter. Since defendant
knocked on the door twice, he was not likely to be the owner or a construction
worker. He was not carrying any construction tools. He entered although no
one had answered his knock. He looked startled and tried to leave as soon as he
spotted the police. At that point, based on the totality of the circumstances, the
police had an objectively reasonable, well-grounded suspicion that defendant
had entered the structure while knowing that he had no right to enter , N.J.S.A.
2C:18-3(a), and hence they had probable cause to arrest him. Gibson, 218 N.J.
at 292-93.
Affirmed.
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