State v. Byseem T. Coles (070653) ( 2014 )

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 of New Jersey v. Byseem T. Coles (A-15-12) (070653)
Argued October 22, 2013 – Decided May 19, 2014
LaVECCHIA, J., writing for a majority of the Court.
In this appeal, the Court considers the validity of a warrantless search, which was consented to by the
homeowner and which occurred while the defendant was unlawfully detained.
Late on May 18, 2009, Camden City Police Department Sergeant Zsakhiem James responded to a report of
a robbery. James quickly arrived at the location and saw defendant Byseem T. Coles, who matched the description
of the robber, walking in his direction on the street where the crime occurred. James exited his vehicle and
questioned defendant, who appeared nervous, detaining him after he gave suspicious answers. Although a patdown
revealed no weapons or evidence of the robbery, defendant was placed in the back seat of a patrol car. Defendant
claimed he lived on the street where he was walking, but he was unable to present identification proving his claim.
Instead, he told James that there were relatives at his home who could identify him. At that point, the robbery
victim arrived for a showup identification. Although defendant’s clothes matched those of the robber, the victim
was unable to identify him as the perpetrator. James and another detective then left defendant in the patrol car while
they walked to the nearby home at which defendant claimed to reside.
Thelma Coles, the homeowner and defendant’s aunt, confirmed that defendant lived in the house. James
wanted to view defendant’s room since he believed defendant had stopped home after the robbery. After repeatedly
asking Ms. Coles for permission to enter the room, she agreed. The door to defendant’s room was ajar a few inches
and a locked padlock was hanging from it. Other doors on the floor also were fitted with padlocks, and Ms. Coles
explained that the locks were primarily intended to keep younger children from rummaging through other people’s
belongings. In his search of the room, James discovered a shotgun and three rifles.
Defendant was indicted on multiple weapons charges, including second-degree certain persons not to
possess weapons. He moved to suppress the evidence found in his bedroom. The trial court denied the motion,
finding that defendant was lawfully detained because police had reasonable suspicion to stop him and pat him down.
The court also concluded that James reasonably believed that Ms. Coles had authority to consent to the search of
defendant’s bedroom and that her consent was voluntarily given since she signed the consent form and admitted that
she saw no reason why she should not do so. Defendant pleaded guilty to second-degree certain persons not to
possess weapons and was sentenced to a five-year prison term with five years of parole ineligibility.
The Appellate Division reversed the denial of defendant’s motion to suppress and his conviction. The
panel focused on whether the third-party consent search was legitimate, determining that Ms. Coles’s consent was
invalid since her familial and informal landlord status did not suffice to give her common authority over defendant’s
bedroom. Thus, the failure of the police to seek defendant’s consent, particularly in light of his nearby retention
under what the panel viewed as questionable circumstances, rendered the search unlawful. The panel noted that
reasonable suspicion to continue defendant’s detention likely ceased to exist when the victim could not identify him.
The Court granted the State’s petition for certification. 212 N.J. 432 (2012).
HELD: Under the circumstances presented here, a third party’s consent to conduct a warrantless search of a
defendant’s living space is insufficient to justify the search when the defendant is unlawfully detained by police.
1. The New Jersey and Federal Constitutions guarantee freedom from unreasonable searches and seizures, viewing
the warrantless entry into a person’s home as presumptively unreasonable. In order to sustain the validity of a
1
warrantless search, the State must demonstrate that it fits within an accepted exception to the warrant requirement,
such as the consent-to-search exception. In consent-based searches, the State bears the burden of proving that
proper consent was freely and voluntarily given. In a series of cases dating back forty years, the United States
Supreme Court has addressed the right of police officers to conduct warrantless searches of homes based on consent
given by a third party. In Georgia v. Randolph, 547 U.S. 103, 122-23 (2006), the Supreme Court considered the
validity of an occupant’s consent in the face of an objecting co-occupant, holding that it is objectively unreasonable
for police to rely on a consenting occupant when faced with a present and objecting co-occupant. However, the
search may be deemed objectively reasonable where a potentially objecting co-occupant is not present for the
threshold colloquy, so long as there is no evidence that the co-occupant was deliberately removed by police to avoid
the objection. Id. at 121. In the Supreme Court’s most recent opinion on this issue, Fernandez v. California, 571
U.S. ___, ___ (2014), it reaffirmed that the objective-reasonableness test prevails and clarified that a potentially
objecting occupant whose absence is due to a lawful detention or arrest stands in the same shoes as an occupant who
is absent for any other reason. (pp. 16-21)
2. Like federal law, New Jersey law recognizes a third party’s ability to consent to a search when the consenter has
common authority for most purposes over the searched space. Although a police officer need not be ultimately
correct about a party’s ability to consent, the officer’s belief must have been objectively reasonable in light of the
facts and circumstances known at the time of the search. (pp. 21-23)
3. Here, turning first to the seizure of defendant’s person, the Court notes that it is undisputed that a police officer
may conduct an investigatory stop where the officer has a particularized suspicion based on an objective observation
that the person has engaged, or is about to engage, in criminal wrongdoing. The stop must be reasonable and
justified by articulable facts. The duration of a properly-conducted stop may be extended for a reasonable, limited
period for investigative purposes. In order for a continued detention to be deemed reasonable, it must have been
reasonable at its inception and throughout its entire execution. When the duration of the detention is at issue, courts
must determine whether the police diligently pursued a means of investigation that was likely to quickly confirm or
dispel their suspicions, during which time the defendant’s detention was necessary. (pp. 23-28)
4. The Court agrees with the trial court and the Appellate Division that the initial stop and detention of defendant
was reasonable. However, once defendant was not identified as the perpetrator during the showup, his continued
detention was unreasonable. Once a detention becomes unreasonable, a de facto arrest occurs, requiring that the
police have probable cause that the defendant has committed or is committing an offense. Here, defendant’s
detention continued even though the showup failed to develop probable cause for his arrest. However, in light of
James’s suspicion and defendant’s lack of identifying documents, the Court allows that James had the flexibility to
detain defendant while seeking confirmation of his identity from his relatives. Once the officers confirmed
defendant’s identity, they no longer had sufficient legal reason to continue his detention. (pp. 28-31)
5. Applying Fernandez, Ms. Coles’s consent was invalid since it was manufactured through defendant’s unlawful
detention. Thus, based on the protection afforded by Article I, Paragraph 7 of the New Jersey Constitution against
unreasonable searches of one’s home and living space and under the totality of these circumstances, the warrantless
search of defendant’s bedroom was not objectively reasonable. This holding is bolstered by Fourth Amendment
principles and the Supreme Court’s holding in Fernandez. In light of this conclusion, there is no need to address
whether Ms. Coles’s authority was sufficient to grant access to defendant’s room. (pp. 31-34)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
JUSTICE PATTERSON, DISSENTING, expresses the view that state and federal search and seizure
jurisprudence requires reversal of the Appellate Division’s determination and that, contrary to the majority’s
assertion, its holding is unsupported by federal search and seizure jurisprudence because this case falls outside of the
narrow category of situations defined by the Supreme Court in Randolph and Fernandez, in particular since the
potentially objecting occupant was not present at the home when the police arrived, or at any time during the search.
CHIEF JUSTICE RABNER, JUSTICE ALBIN, and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON filed a separate
dissenting opinion.
2
SUPREME COURT OF NEW JERSEY
A-15 September Term 2012
070653
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BYSEEM T. COLES,
Defendant-Respondent.
Argued October 22, 2013 – Decided May 19, 2014
On certification to the Superior Court,
Appellate Division.
Frank Muroski, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney; Hillary K. Horton, Deputy
Attorney General, of counsel and on the
briefs).
Daniel V. Gautieri, 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 Foundation (Edward L. Barocas,
Legal Director and Ronald K. Chen, Acting
Dean of Rutgers Constitutional Litigation
Clinic Center for Law & Justice attorneys;
Mr. Shalom, Mr. Barocas, Mr. Chen, and
Jeanne M. Locicero, of counsel and on the
brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
1
This appeal involves the validity of the warrantless search
of the bedroom of defendant, Byseem Coles, a young adult, nine
days shy of twenty years old when the events pertinent to this
appeal occurred. Defendant lived with other family members in
his aunt’s home in Camden where he had his own bedroom. The
bedroom door had a padlock on it to keep others, especially
young children living in the household, from getting into his
private belongings.
On the evening of March 18, 2008, when defendant was
walking in the neighborhood in which he lived, he was detained
by a police officer investigating a reported robbery in the
area. After a showup in which the robbery victim failed to
identify defendant as the perpetrator, and after a search of
defendant’s person that produced no evidence linking defendant
to the crime, defendant’s detention was continued because he had
no identifying documents on his person. At defendant’s urging,
two officers walked a few houses over from where defendant was
being held in a patrol car to ask one of defendant’s relatives
to confirm that he lived at the address he had given the police.
Instead of merely confirming defendant’s identity and that he
lived in the home, the inquiries by the police turned into a
concerted effort to obtain defendant’s aunt’s permission to
search defendant’s bedroom. During the ensuing search, weapons
2
unrelated to the robbery under investigation were found in his
room.
We conclude that defendant’s detention was unlawful. The
police lacked probable cause to continue his detention after the
showup and the search of defendant produced no evidence linking
him to the crime. Although the police officers were entitled to
a reasonable, but brief, opportunity to confirm defendant’s
identity, that identification was accomplished at the threshold
of defendant’s home. When the police efforts turned immediately
thereafter to securing from defendant’s aunt consent to search
defendant’s bedroom, their actions were premised on the belief
that the man held in the patrol car was Byseem Coles. However,
at that point, defendant’s detention ceased to be lawful. The
interactions with defendant’s aunt cannot be disentangled from
the unlawful detention of defendant in a patrol car parked a few
houses down the street. Thus, the objective reasonableness of
this asserted consent-based search founders on the unlawfulness
of the police detention of defendant in the totality of these
circumstances.
Accordingly, under the totality of these circumstances, we
hold that the warrantless search of defendant’s bedroom was not
objectively reasonable, and we base that holding on the
protection provided by Article I, Paragraph 7 of the New Jersey
Constitution against unreasonable searches of one’s home and
3
personal living space. See State v. Evers, 175 N.J. 355, 384
(2003) (granting privacy interests in home “the highest degree
of respect and protection in the framework of our constitutional
system”).
Although our decision is based on state constitutional law,
our holding is bolstered by Fourth Amendment principles.
Federal case law supports the conclusion that a warrantless
consent-based search is objectively unreasonable and
unconstitutional when premised on defendant’s illegal detention.
See Fernandez v. California, 571 U.S. ___, ___, 134 S. Ct. 1126,
1134, 188 L. Ed. 2d 25, 35 (2014).
I.
A.
The facts as summarized are based on the testimony from the
hearing conducted by the suppression court. Differences between
what the officer learned at the scene and the information
elicited at the suppression hearing are highlighted.
At 11:34 p.m. on May 18, 2009, Sergeant Zsakhiem James of
the Camden City Police Department responded to a report of a
robbery in Camden. The dispatcher informed James that a “male
had just robbed a female in the area of the 1100 block of
Lakeshore Drive” and described the perpetrator as a “black male
wearing black pants and a gray hooded sweatshirt.” James
4
testified that there was “information that [the perpetrator]
used a weapon,” which James believed to be a handgun.
According to James, he arrived at the location within
“minutes” and began driving from the 1100 block, where the crime
took place, toward the 1300 block. James saw defendant, who
matched the description of the robber, walking in James’s
direction on the street where the crime took place; in other
words, defendant was walking toward his home, which was situated
between defendant and the officer’s approaching vehicle. James
exited his vehicle, approached defendant, and engaged him in
conversation. James testified that he detained defendant
because he gave suspicious answers to questioning about where he
was coming from1 and because defendant appeared “nervous” and
“fidgety.” James conducted a Terry2 frisk and called for a
backup unit because a police dog occupied the back of his K-9
vehicle and he had no other place in which to secure defendant.
The patdown of defendant revealed no weapons or any evidence of
the robbery. Nevertheless, defendant was placed in the back
seat of the backup unit that had arrived.
James then asked defendant where he lived. Defendant
replied that he lived at 1287 Lakeshore Drive, the block on
1
Defendant told James that he was coming from a takeout
restaurant several blocks away where, he said, he had purchased
a soda.
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
5
which he had been walking; however, he was unable to produce
identification to prove it. He told the officers that there
were relatives at home with whom he lived -- an aunt and a
cousin -- who could identify him.
At that point, the victim of the robbery arrived for a
showup identification and defendant was removed from the police
vehicle. The victim was unable to identify defendant as the
perpetrator after viewing his face because, she said, “the
robber had a mask on.” Based on defendant’s outfit -- the
ubiquitous black pants and grey hooded sweatshirt of many young
urban males -- the victim added that defendant’s clothes matched
the clothes the robber had worn.
The officers returned defendant to the back seat of the
patrol car. James, along with a detective, walked six houses
down the street to the residence at which defendant claimed to
reside. A woman who identified herself as Thelma Coles, the
homeowner, answered their knock on the door. James explained
that the officers were investigating a robbery. He told Ms.
Coles that they “had a young man in . . . custody who[]
identified himself as Byseem Coles and stated that he lived
there.” They asked her “if she had any identification for him.”
She replied that the officers could not have her nephew because
she had “just heard him inside . . . his room moving and banging
around.” However, after having another family member check the
6
bedroom while the officers waited at the threshold, she learned
that he was not home.
B.
According to James, he then wanted to view defendant’s room
himself because he believed that defendant had stopped home
after committing the robbery and that evidence of the crime
might be discovered in the bedroom. He repeatedly asked Ms.
Coles for permission to view the room. Although other family
members urged her not to agree, Ms. Coles ultimately agreed to
let in only James.
She directed him to the bedroom at the top of the stairs
leading from the front door. Once there, James observed a
locked padlock hanging from the door, although the door was ajar
a few inches. Other doors on the floor were also fitted with
padlocks. He asked Ms. Coles if she had a key to the padlock on
defendant’s bedroom door and learned that she did. He also
learned that a padlock was on defendant’s bedroom door, as well
as others, to keep others, especially younger children in the
house, from touching or rummaging through other people’s
belongings that were kept in their bedrooms. James’s
questioning of Ms. Coles persisted at the bedroom doorway and he
extracted from Ms. Coles that she had slept in defendant’s
7
bedroom recently. No other questions were asked of Ms. Coles at
the time.3
Concluding that she had authority to consent to a search of
the room, James began a methodic search that included looking in
first one, and then a second, duffle bag sitting on the floor of
the bedroom’s closet in order, as he explained it, to look for
the victim’s purse or a handgun hidden under the bags in the
closet. After picking up the first zippered-closed bag, James
opened it because he thought he felt the stock of a shotgun in
it. Discovering a shotgun in the first bag, he opened the
second duffle bag that had been underneath and that had fallen
to the ground with a loud thud. He found a rifle in that bag.
The remainder of the search involved looking under a floor vent,
opening a safe in the room, and going through closed drawers.
Two more rifles were found below the floor vent. Ammunition for
unrelated weapons was found in the safe and in a bag in a
3
Later, at the suppression hearing, Ms. Coles elaborated on her
statement. She testified that she had slept in defendant’s
bedroom a couple of months earlier when her father, for personal
reasons, had stayed in her home for several weeks. On that
occasion, defendant had stayed with his mother for those weeks
to make room for the extra family member. Ms. Coles emphasized
that, although she used the bedroom for sleeping purposes, she
did not disturb defendant’s belongings other than to watch the
television located in his room. That detail concerning Ms.
Coles’s use of the room, and other information regarding
arrangements about defendant’s payment of rent, was not known to
James at the time of the search. Once James learned that Ms.
Coles had slept in the room, he did not ask any other questions
to probe the nature of her authority over the room.
8
dresser drawer. The ammunition found in the safe is not part of
the suppression motion before us.
C.
On August 13, 2009, a Camden County grand jury indicted
defendant on three counts of third-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-5(c)(1); third-degree unlawful
possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b); fourth-
degree unlawful possession of a defaced firearm, N.J.S.A.
2C:39-9(e); fourth-degree unlawful possession of a large
capacity ammunition magazine, N.J.S.A. 2C:39-3(j); and second-
degree certain persons not to possess weapons, N.J.S.A.
2C:39-7(b). Defendant filed a motion to suppress the evidence
found in his bedroom. After hearing testimony and argument, the
motion court denied the application in a written opinion.
The motion court first dispensed with the legitimacy of
defendant’s detention, finding that the police had reasonable
suspicion to conduct a Terry stop and patdown search when
defendant matched the sex and race description, and wore
clothing fitting the description reported by the victim; gave
“incongruous answers”; and was “fidgety” and “nervous” when
describing his whereabouts. The court concluded that
defendant’s detention was valid.
Next, the court concluded that Ms. Coles had authority to
consent to a search of defendant’s bedroom. The court found
9
that she and defendant “share[d] control of the space” because
she occasionally slept in the room. Although there was a
padlock on the door, Ms. Coles had a key to that lock and to
those on the other doors, which had been installed prior to the
time defendant moved into the home to keep younger children from
accessing other persons’ rooms. Those facts, along with the
informal nature of the rental arrangement between defendant and
Ms. Coles, which was brought out in the hearing but not during
the exchange between James and Ms. Coles at the time of the
search, persuaded the court that defendant had no reasonable
expectation of privacy in the room. With respect to whether
Sergeant James could have reasonably believed that Ms. Coles had
apparent authority over the bedroom, the court found that James
held a reasonable belief that she could consent to the search
because James had no way to know at the time of the search if
defendant paid rent; Ms. Coles had told him that she had
accessed defendant’s room in the recent past to sleep there; Ms.
Coles consented in writing to the search; and she showed James
to the bedroom door, which was ajar.
Turning to the voluntariness of Ms. Coles’s consent, the
court considered the impact of Sergeant James’s statement,
testified to by Ms. Coles and not disputed by James, that he did
not have a search warrant but “could get one.” Noting that it
was arguably a coercive statement, the court determined that
10
consent was voluntarily given, relying on its findings that
James told Ms. Coles that she could refuse consent, that she
signed a consent form, and that she acknowledged at the
suppression hearing that she saw no reason why she should not
consent to the search.
Finally, the court dispensed with arguments that the search
exceeded the permissible scope authorized by Ms. Coles. Those
arguments are not pertinent to our analysis and therefore will
not be examined in detail.4
Defendant pleaded guilty to the charge of second-degree
certain persons not to have weapons, N.J.S.A. 2C:39-7(b), in
exchange for dismissal of the remaining charges. The court
sentenced defendant to a five-year prison term with five years
of parole ineligibility. Defendant also was sentenced to a
three-year prison term for a violation of probation charge,
which was made to run concurrent with the sentence on the
certain-persons offense.
D.
4
The court found that, although third-party consent does not
authorize a search inside another person’s private belongings
unless those items are in plain view, James immediately
recognized the feel of a shotgun inside the duffle bag in the
closet when he was searching for the stated objects of his
search, namely evidence of the robbery. After the initial
finding of the shotgun, the court explained that James saw a
rifle and magazine clip in the second unzipped bag that fell to
the floor when he had moved the first bag. The court found that
the community-caretaking exception to the warrant requirement
justified a search of the remainder of defendant’s bedroom.
11
In an unpublished decision dated April 11, 2012, the
Appellate Division reversed the denial of defendant’s motion to
suppress. The panel analyzed the motion with a focus on whether
the third-party consent search was legitimate and determined
that defendant’s “aunt did not have common authority over his
bedroom, and therefore could not consent to the search.” The
panel also concluded that “the failure of the police to ask
defendant for his consent -- especially when defendant was
nearby and was being held in police custody under circumstances
that were, at best, questionable -- rendered the ensuing search
unlawful.” The panel explained that courts assess the
“reasonableness of the search in the totality of the
circumstances, and must avoid applying” exceptions to the
warrant requirement “in a vacuum.”
According to the panel, Ms. Coles did not have common
actual authority to consent to the search because, even if Ms.
Coles accessed defendant’s room for “‘limited purposes,’ that
. . . does not give [her] authority to consent to a search.”
The panel stated that although Ms. Coles occasionally slept in
defendant’s bedroom and had a key to it, her familial and
landlord status did not give her authority to consent to a
search of defendant’s bedroom. The panel determined that the
motion court erred in its reliance on State v. Crumb, 307 N.J.
Super. 204, 243-46 (App. Div. 1997), certif. denied, 153 N.J.
12
215 (1998), which involved a different familial relationship
between the parties, a different rental arrangement between
those parties, and a room with only an unhinged door to provide
privacy. Here, the panel determined that the motion court erred
in concluding that defendant was not a tenant in his aunt’s
home, where this almost twenty-year-old nephew paid his aunt
$250 per month in board, which the police could have discovered
by inquiring. Although defendant was not always required to pay
rent or risk eviction, the panel was not persuaded that the
informality of the rental agreement authorized defendant’s
landlady to consent to a search of his room under State v.
Coyle, 119 N.J. 194, 217 (1990).
In addressing the overall unreasonableness of the search,
the panel noted that the police ignored “the very person with
the superior right to control access to the room” --
defendant -- who was in police custody six houses away.
Instead, without explanation, the police decided to obtain
consent from Ms. Coles. The panel stated that the conduct of
the police leading up to the search was of “questionable
validity” because reasonable suspicion to continue to detain
defendant had likely “evaporated” when the victim was unable to
identify him as the perpetrator. Citing Georgia v. Randolph,
547 U.S. 103, 121, 126 S. Ct. 1515, 1527, 164 L. Ed. 2d 208,
226-27 (2006), the panel concluded that “defendant’s continued
13
detention” in those questionable circumstances contravened
federal precedent. Using a totality-of-the-circumstances
assessment, the panel held the search to be unreasonable,
reversed the suppression order of the trial court and
defendant’s conviction, and remanded for entry of an order
suppressing the evidence and further proceedings.
We granted the State’s petition for certification. State
v. Coles, 212 N.J. 432 (2012).
II.
A.
The State seeks reversal of the Appellate Division’s
decision. The State contends that Ms. Coles possessed
sufficient common authority over defendant’s bedroom to consent
to a search of the room. The State’s argument in that respect
is based on Ms. Coles’s status as defendant’s aunt, the fact
that she had recently slept in the room, and that she had a key
to the padlock mounted on the door. Further, the State
maintains that, based on the totality of the circumstances,
Sergeant James’s belief that Ms. Coles possessed common
authority over the room was reasonable and that the search
therefore was justified.
The State further argues that defendant’s detention was
proper and based on reasonable suspicion. Accordingly, it
maintains that the third-party consent search was legitimate
14
because defendant was not present at the scene and objecting to
the search. The State relies on Randolph, supra, 547 U.S. at
121-22, 126 S. Ct. at 1527, 164 L. Ed. 2d at 226-27, as well as
the more recent decision in Fernandez, supra, 571 U.S. at ___,
134 S. Ct. at 1133-34, 188 L. Ed. 2d at 34, to support that
contention. Finally, the State disputes that Ms. Coles’s
consent was not knowing, voluntary, and intelligent at all
stages of the search.
B.
Defendant argues that the appellate panel’s decision should
be affirmed because his aunt had neither actual nor apparent
authority to consent to a search of his bedroom. He asserts
that he was a tenant and that he maintained exclusive control
over his room.
He also contends that his detention was improper. He
argues that Sergeant James lacked reasonable suspicion when the
detention began and that after the victim did not identify him
there was no probable cause to continue his detention.
Therefore, the subsequent search of his room was impermissible
under Randolph because the police knowingly kept defendant
detained in the patrol car to avoid the possibility that he
would refuse to consent to the search. Finally, defendant
argues that Ms. Coles’s consent to the search was not voluntary
but rather was the result of police coercion.
15
C.
The American Civil Liberties Union of New Jersey (ACLU),
appearing as amicus curiae, urges this Court to affirm the
appellate panel’s decision. The ACLU submits that a landlord-
tenant relationship existed in this case; that Ms. Coles’s
limited access to the room did not alter the basic assumption
that defendant maintained a reasonable expectation of privacy
when he occupied his room; and that Ms. Coles’s familial role as
defendant’s aunt does not and should not alter that assumption.
Accordingly, Ms. Coles did not possess common authority to
consent to a search of defendant’s room. Further, the ACLU
contends that police should not be permitted to utilize
selective questioning techniques to avoid obtaining information
that would undercut the appearance of common authority.
Finally, the ACLU argues that, even if Ms. Coles had the
authority to consent to the search, the scope of that authority
did not extend to secured containers within the room.
III.
A.
The New Jersey and Federal Constitutions guarantee the
rights of persons to be free from unreasonable searches and
seizures. N.J. Const. art. I, ¶ 7; U.S. Const. amend. IV. The
Fourth Amendment and the New Jersey Constitution assure the
“highest degree of protection to privacy interests within the
16
home.” State v. Johnson, 193 N.J. 528, 532 (2008). Both
protect against unreasonable searches and regard the warrantless
entry into a person’s home as “presumptively unreasonable.” Id.
at 552 (internal quotation marks omitted); Payton v. New York,
445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651
(1980).
To sustain the validity of a warrantless search, the State
must demonstrate that the search fits within an accepted
exception to the warrant requirement, one of which is the long-
recognized consent-to-search exception. See Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L.
Ed. 2d 854, 858 (1973); State v. Domicz, 188 N.J. 285, 305
(2006).
B.
In a series of decisions dating back forty years, the
United States Supreme Court has addressed the right of police
officers to conduct warrantless searches of homes based on
consent given by a third party. See United States v. Matlock,
415 U.S. 164, 171-72, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242,
249-50 (1974) (affirming warrantless entry and search by police
officers who obtained consent of person possessing common
authority over premises searched); Illinois v. Rodriguez, 497
U.S. 177, 185-89, 110 S. Ct. 2793, 2800-02, 111 L. Ed. 2d 148,
159-61 (1990) (affirming search by police based on consent
17
granted by person whom police reasonably believed possessed
common authority over premises to be searched). In consent-
based searches, the State bears the burden of proving that
proper consent was given freely and voluntarily. Schneckloth,
supra, 412 U.S. at 223, 93 S. Ct. at 2045-46, 36 L. Ed. 2d at
860-61; State v. Johnson, 68 N.J. 349, 354 (1975).
The United States Supreme Court has relied on the test of
objective reasonableness in third-party consent searches. It
was the underpinning of the apparent authority holding in
Rodriguez, supra. See 497 U.S. at 185-86, 110 S. Ct. at 2799-
2800, 111 L. Ed. 2d at 159-60. There, the actions of the police
were overtly tested by that standard when consent was granted by
a third party in the absence of the defendant against whom the
evidence seized would be used in a criminal trial. Ibid.
Moreover, the United States Supreme Court has held that,
when faced with the circumstances of a present and objecting co-
occupant, it is objectively unreasonable for police to rely on
the consenting occupant. In Randolph, supra, the Court’s
majority opinion, written by Justice Souter, held that the
physically present co-occupant’s stated refusal to permit entry
prevails. 547 U.S. at 122-23, 126 S. Ct. at 1528, 164 L. Ed. 2d
at 227.
In Randolph, a wife had returned to the home she shared
with her husband, after she had been staying with her family for
18
several months. Id. at 106, 126 S. Ct. at 1519, 164 L. Ed. 2d
at 217. She called the police to the home when her husband took
their child away after a dispute erupted between the couple.
Id. at 107, 126 S. Ct. at 1519, 164 L. Ed. 2d at 217. When the
police arrived, she told them that her husband was a drug user
and volunteered that there was evidence of that in the house.
Ibid. The husband was present during this exchange and refused
to grant the officers permission to search the home. Ibid.
After the police searched the home pursuant to the wife’s
consent, the defendant moved to suppress the evidence seized
during the search. The Supreme Court of Georgia sustained a
reversal of an initial order of suppression and the United
States Supreme Court affirmed the suppression of the seized
evidence. The Supreme Court majority held that a warrantless
search of shared dwelling space over the clear refusal of
consent by a physically present resident is not reasonable, and
required suppression of evidence that was seized on the basis of
consent provided by another resident. Id. at 120, 126 S. Ct. at
1526, 164 L. Ed. 2d at 226.
The Randolph majority also addressed two “loose ends” from
its prior decisions in Matlock and Rodriguez. Id. at 120-21,
126 S. Ct. at 1527, 164 L. Ed. 2d at 226. First, the Court
explained that Matlock’s recognition of a co-tenant’s right to
admit the police arises from the role that customary social
19
usage bears in assessing the reasonableness of a search under
the Fourth Amendment. Ibid. The Randolph majority stated that
the right to admit arises not from “property right”
considerations but rather from customary social understanding of
whether there is a right to admit “powerful enough to prevail
over the co-tenant’s objection.” Ibid. Second, the Court’s
majority opinion noted that fine factual nuances distinguished
Matlock and Rodriguez from Randolph and acknowledged the “fine
line” it was drawing:
If a potential defendant with self-interest
in objecting is in fact at the door and
objects, the co-tenant’s permission does not
suffice for a reasonable search, whereas the
potential objector, nearby but not invited
to take part in the threshold colloquy,
loses out.
This is the line we draw, and we think
the formalism is justified. So long as
there is no evidence that the police have
removed the potentially objecting tenant
from the entrance for the sake of avoiding a
possible objection [the search may be deemed
objectively reasonable].
[Id. at 121, 126 S. Ct. at 1527, 164 L. Ed.
2d at 226-27 (emphasis added).]
While emphasizing a disinclination to turn every co-tenant
consent case into an examination into police efforts to locate a
potential objector, the Court cautioned that police cannot make
a defendant unavailable for the sake of avoiding a possible
objection. See id. at 121-22, 126 S. Ct. at 1527-28, 164 L. Ed.
20
2d at 226-27. That noted exception was the subject of attention
in the Court’s most recent opinion in this line of cases.
In Fernandez, supra, the Court reaffirmed the “touchstone”
of objective reasonableness. 571 U.S. at ___, 134 S. Ct. at
1132, 188 L. Ed. 2d at 32. Fernandez also clarified that an
occupant who is absent due to a lawful detention or arrest
stands in the same shoes as an occupant who is absent for any
other reason, ratifying that Randolph’s holding otherwise
requires the presence of the objecting occupant. Id. at ___,
134 S. Ct. at 1134, 188 L. Ed. at 35. We take from Fernandez
two things: (1) that the objective-reasonableness test
prevails; and (2) that police responsibility for the unlawful
detention or removal of a tenant who was prevented from being
present at the scene to voice his or her objection to the search
is not equivalent to other neutral circumstances causing the
defendant’s absence.
C.
Our state law on consent searches similarly has recognized
a third party’s ability to consent to a search when the
consenter has common authority for most purposes over the
searched space. See State v. Suazo, 133 N.J. 315, 319-20 (1993)
(noting Matlock and Rodriguez upholding, under federal and state
constitutions, third-party consent rendering warrantless search
of premises objectively reasonable). As we have explained,
21
police officers need not ultimately be factually correct about a
party’s ability to consent to a search. Id. at 320. The
question is “whether the officer’s belief that the third party
had the authority to consent was objectively reasonable in view
of the facts and circumstances known at the time of the search.”
Ibid.; see also Crumb, supra, 307 N.J. Super. at 243 (upholding,
as objectively reasonable, officer’s warrantless search of adult
son’s bedroom in mother’s trailer home based on mother’s consent
where bedroom lacked hinged door and thus provided no
expectation of privacy).
The appellate panel in Crumb, supra, noted that appellate
decisions from our state generally have aligned with “the
overwhelming majority of [jurisdictions] in holding that a
parent has the right to consent to the search of the property of
his or her son or daughter.” 307 N.J. Super. at 243. In
assessing the objective reasonableness in a circumstance
involving an adult child living with parents, the Crumb panel
discussed factors to consider when determining whether a child
has exclusive possession of his or her room, such as whether the
child pays rent;5 whether the parent has access to the child’s
5
In a parent-child or other familial relationship, depending on
the age of the child and the relationship, the typical rules
governing a landlord’s inability to consent to the search of a
tenant’s rented premises do not translate with crystalline
clarity. See State v. Scrotsky, 39 N.J. 410, 415 (1963). Even
the typical landlord, who may have a right to access the
22
room for cleaning or other such general access purposes; and
whether the child has the right to lock the door to deny access.
Id. at 245.
Ultimately, under our state law, the question remains one
of objective reasonableness based on an assessment of the
totality of the circumstances.
IV.
We thus turn to assess the objective reasonableness of the
circumstances leading to the search of defendant’s bedroom.
That assessment necessarily begins with review of the seizure of
defendant’s person.
A.
The suppression court determined that Sergeant James had
reasonable suspicion to stop and briefly detain defendant,
explaining its reasoning as follows:
The determination of the legality of
the detention that followed the questioning
of Defendant requires a review of the
totality of the circumstances. Here, the
totality of the circumstances includes: 1)
the fact that Defendant was wearing
practically identical clothing to that of
the robbery suspect (as confirmed by the
robbery victim); 2) the incongruous answers
Defendant gave regarding where he had been
and where he was going (and, more precisely,
Sgt. James’s knowledge, based on his
familiarity with the area, that the answers
tenant’s room for specific “limited purposes,” does not by
virtue of such authority have the ability to consent to a
search. Coyle, supra, 119 N.J. at 216.
23
were factually suspect); and 3) Defendant’s
“fidgety” and “nervous” conduct as he spoke
with Sgt. James, an 18-year Camden police
veteran.
The Appellate Division had no quarrel with the initial stop
by James, who was investigating a reported armed robbery in the
neighborhood in which he encountered defendant, but the panel’s
review of the circumstances of the continued investigatory
detention of defendant after the victim was unable to identify
defendant as her assailant led it to conclude that the continued
detention may have been unreasonable. We note at the outset
that the Appellate Division’s review was itself conducted “with
substantial deference to the trial court’s factual findings,
which [it] ‘must uphold . . . so long as those findings are
supported by sufficient credible evidence in the record.’”
State v. Hinton, 216 N.J. 211, 228 (2013) (omission in original)
(quoting State v. Handy, 206 N.J. 39, 44 (2011)). However, a
reviewing court owes no deference to the trial court’s
determinations as to matters of law, and those determinations
are reviewed de novo. State v. Buckley, 216 N.J. 249, 260-61
(2013); State v. Schubert, 212 N.J. 295, 304 (2012).
Those standards also govern our review of the legality of
defendant’s detention.
B.
24
A warrantless seizure of a person is “‘presumptively
invalid as contrary to the United States and the New Jersey
Constitutions’” unless that warrantless seizure “‘falls within
one of the few well-delineated exceptions to the warrant
requirement.’” State v. Mann, 203 N.J. 328, 337-38 (2010)
(quoting State v. Pineiro, 181 N.J. 13, 19 (2004), and State v.
Elders, 192 N.J. 224, 246 (2007), respectively). An
investigatory stop of a person -- sometimes referred to as a
Terry stop -- is one such exception. State v. Rodriguez, 172
N.J. 117, 126-27 (2002).
It is undisputed that a police officer may conduct an
investigatory stop of a person if that officer has
“particularized suspicion based upon an objective observation
that the person stopped has been or is about to engage in
criminal wrongdoing.” State v. Davis, 104 N.J. 490, 504 (1986)
(internal quotation marks omitted); accord Mann, supra, 203 N.J.
at 338. The stop must be reasonable and justified by
articulable facts; it may not be based on arbitrary police
practices, the officer’s subjective good faith, or a mere hunch.
See State v. Shaw, 213 N.J. 398, 411 (2012); Rodriguez, supra,
172 N.J. at 127.
There is a recognized constitutional balance to be struck
between individual freedom from police interference and the
legitimate and reasonable needs of law enforcement. See Davis,
25
supra, 104 N.J. at 502 (noting that “Article I, paragraph 7 of
the New Jersey Constitution ‘does not speak in absolute terms
but strikes a balance between the interests of the individual in
being free of police interference and the interests of society
in effective law enforcement’” (quoting State v. Dilley, 49 N.J.
460, 468 (1967))); see also State v. Arthur, 149 N.J. 1, 7
(1997) (noting police conduct may be “assessed by ‘balancing the
need to search (or seize) against the invasion which the search
(or seizure) entails’” (quoting Terry, supra, 392 U.S. at 21, 88
S. Ct. at 1879, 20 L. Ed. 2d at 905)). That balance is critical
because both the Fourth Amendment to the United States
Constitution and Article I, Paragraph 7 of the New Jersey
Constitution guarantee to New Jersey’s citizens “[t]he right to
walk freely on the streets of a city without fear of an
arbitrary arrest.” State v. Gibson, ___ N.J. ___, ___ (2014)
(slip op. at 8). When evaluating the reasonableness of a
detention, the “totality of circumstances surrounding the
police-citizen encounter” must be considered. State v. Privott,
203 N.J. 16, 25 (2010) (quoting Davis, supra, 104 N.J. at 504).
Case law has recognized law enforcement’s need to respond
to the fluidity of a street encounter where there is a
reasonable suspicion of wrongdoing; accordingly, the duration of
the investigative stop may be extended for a reasonable but
limited period for investigative purposes. See, e.g., State v.
26
Sloane, 193 N.J. 423, 426 (2008) (upholding officer’s decision
to search NCIC database during traffic stop because that
decision “did not unreasonably prolong the stop”); State v.
Herrera, 187 N.J. 493, 504 (2006) (upholding investigatory
stop). The reasonableness of a continued detention is
determined through application of a two-pronged inquiry. First,
the detention must have been reasonable at its inception. See
State v. Dickey, 152 N.J. 468, 476 (1998); Davis, supra, 104
N.J. at 504, 507. Second, the scope of the continued detention
must be reasonably related to the justification for the initial
interference. Dickey, supra, 152 N.J. at 476. Thus, the
detention must be reasonable both at its inception and
throughout its entire execution. See ibid.; United States v.
Sharpe, 470 U.S. 675, 682-83, 105 S. Ct. 1568, 1573-74, 84 L.
Ed. 2d 605, 613 (1985). Further, the officer must use the least
intrusive means necessary to effectuate the purpose of the
investigative detention, Davis, supra, 104 N.J. at 504, and the
detention must “last no longer than is necessary to effectuate
the purpose of the stop,” Shaw, supra, 213 N.J. at 411 (quoting
Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75
L. Ed. 2d 229, 238 (1983)).
Our Court has recognized that “[t]here is [no] litmus-paper
test for . . . determining when a seizure exceeds the bounds of
an investigative stop”; instead, when the duration of the
27
detention is at issue, the proper question is “whether the
police diligently pursued a means of investigation that was
likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant.” Dickey,
supra, 152 N.J. at 476-77 (second alteration in original)
(internal quotation marks omitted); see also State v. Baum, 199
N.J. 407, 425 (2009) (stating continued detention beyond time
needed to effectuate purpose of investigative detention
constituted de facto arrest).
C.
In the matter at hand, we agree with the trial court and
the Appellate Division that Sergeant James’s initial stop and
detention of defendant was reasonable. We have no quarrel with
James’s patdown of defendant or his detention of defendant to
enable a showup identification to be conducted. However, once
the victim of the reported armed robbery arrived for a showup
and was unable to identify defendant as the perpetrator, the
calculus changed.
In assessing the reasonableness of a detention’s duration,
we have upheld a police officer’s short-term detention of a
suspect for the purpose of conducting a showup identification.
See, e.g., State v. Henderson, 208 N.J. 208, 259 (2011) (noting
“[s]howups often occur at the scene of a crime soon after its
commission”); State v. Romero, 191 N.J. 59, 78 (2007) (upholding
28
showup identification conducted during investigative detention).
Such a brief investigative detention serves the beneficial
purpose of quickly exonerating innocent suspects. See Romero,
supra, 191 N.J. at 78; Herrera, supra, 187 N.J. at 504
(acknowledging showup identifications may “tend to avoid or
minimize inconvenience and embarrassment to the innocent”). In
that respect, it is a trade-off. By detaining an individual for
whom probable cause to arrest is lacking in order that a showup
might take place, the person exonerated by the showup is able to
be on his or her way without the delay and inconvenience of
being brought to headquarters and being required to submit to a
line-up. See Herrera, supra, 187 N.J. at 504 (discussing
utility of showup identifications). In other words, the
exonerated person is not to be subjected to further detention.
A continued detention must conform to the constitutional
requirement of the reasonableness standard that governs all
investigative stops. If an officer’s conduct is unnecessarily
intrusive or if the suspect is detained for a period beyond what
can be considered reasonable, a de facto arrest occurs. See
Dickey, supra, 152 N.J. at 478. Once a de facto arrest occurs,
the particularized suspicion that originally supported the
investigative detention is no longer sufficient and the arrest
must be supported by probable cause. See Gibson, supra, ___
N.J. at ___ (slip op. at 8) (“A person cannot be arrested unless
29
there is probable cause to believe that he has committed or is
committing an offense.”). An arrest unsupported by probable
cause constitutes an “unreasonable seizure in violation of both
the Federal and State Constitutions.” Ibid.
Here, defendant was prevented from going on his way after
the showup failed to develop probable cause to arrest him.6
James continued to detain defendant because defendant did not
have any identification documents on him to prove that he was
Byseem Coles and that he lived where he said that he did. While
individuals are not required to carry identifying documents on
them at all times in our free country, we accept that law
enforcement acting under reasonable suspicion of an individual
can expend a brief but reasonable period of time to confirm an
individual’s identity in circumstances as presented here. Our
case law has recognized a reasonable and brief interlude of time
to permit such identifications to take place. See, e.g., Handy,
supra, 206 N.J. at 47 (finding no quarrel with officer’s
extension of investigatory stop of suspect to ascertain
identity); Sloane, supra, 193 N.J. at 437 (finding officer’s
running of NCIC check and driver’s license check reasonable
during traffic stop); State v. Nishina, 175 N.J. 502, 513 (2003)
6
At oral argument the State acknowledged that it lacked probable
cause to arrest defendant after the showup did not result in
defendant’s identification as the perpetrator of the armed
robbery under investigation.
30
(holding officer “was justified in continuing to question
defendant,” including asking for identification).
Therefore, we allow that Sergeant James had the flexibility
to seek confirmation of defendant’s identity, as defendant had
suggested to James, from defendant’s relatives who were
reportedly at his nearby home. We further do not propose to
hamstring the police officers’ on-the-scene determination to
keep defendant detained in the patrol car while two officers
approached the door of the home to which defendant directed
them. Where we do part ways with the reasonableness of the
police officers’ conduct is with what transpired at the doorway.
At the threshold to the home, in an exchange with
defendant’s aunt, the officers dropped their suspicion of
whether defendant was who he said he was -- Byseem Coles. Their
actions demonstrated that they had confirmed his identity and
that he lived there because they commenced a concerted course of
action to secure defendant’s aunt’s permission to let them
search his bedroom. However, in accepting those beliefs as to
defendant’s identity and residence, the officers no longer had
sufficient legal reason to continue his detention. At that
point, defendant’s continued police detention was no longer
lawful.
The upshot of that alteration in the legality of the police
detention of defendant is that the State cannot claim that James
31
secured a valid consent to search defendant’s room from his
aunt. The validity of this consent-premised search turns on the
objective reasonableness of the police conduct based on the
totality of the circumstances.
As the United States Supreme Court’s Fernandez opinion
makes clear, valid third-party consent is subject to the
exception that the third party’s consent cannot be manufactured
through the unlawful detention of the defendant. That is what
occurred here. Defendant was being unlawfully detained the
moment the last vestige of a valid, continued investigatory
detention had been resolved through confirmation of his identity
and residence. At that point, he was entitled to be released.
But, he was not. Rather, his detention continued while an
officer questioned his aunt and obtained her consent rather than
defendant’s to the search of his bedroom. The objective
reasonableness of this asserted consent-based search ends with
our conclusion that defendant was being unlawfully detained by
police, a few houses away from his home, as soon as the officers
at the doorway of his home transferred their focus from securing
confirmation of defendant’s identity to securing unilateral
consent from defendant’s aunt for the search of defendant’s
room.
We need not address whether defendant’s aunt’s authority,
standing alone, was sufficient to grant the officers access to
32
the private bedroom of this young adult male living, as so many
people do, in an extended-family living arrangement. We note
only that, in such settings, personal privacy rights are not
easily assessed through any uniform set of questions. We
decline to parse the thoroughness of the officer’s questioning
of the aunt, and his judgment based on her on-the-scene answers
because, in the totality of these circumstances, this asserted
consent-based search went off the rails of objective
reasonableness once the officer began to secure consent from
her. The officer’s action detaining defendant in a patrol car
when probable cause to arrest was lacking effectively prevented
any objection from defendant. It also prevented him from
disputing his aunt’s statements in response to police inquiries
about control over the room.
We conclude that the objective reasonableness of this
asserted consent-based search founders on the unlawfulness of
the police detention of defendant in the totality of these
circumstances. See Suazo, supra, 133 N.J. at 320 (adopting test
of objective reasonableness based on totality of circumstances
for asserted third-party consent searches of homes). Under the
totality of these circumstances, we hold that the warrantless
search of defendant’s bedroom was not objectively reasonable,
and we base our holding on the protection provided by Article I,
Paragraph 7 of the New Jersey Constitution against unreasonable
33
searches of one’s home and personal living space. See Evers,
supra, 175 N.J. at 384 (granting privacy interests in home “the
highest degree of respect and protection in the framework of our
constitutional system”).
Although our decision is based on state constitutional law,
our holding is bolstered by Fourth Amendment principles.
Federal case law also supports the conclusion that a warrantless
consent-based search is objectively unreasonable and
unconstitutional when premised on a defendant’s illegal
detention. See Fernandez, supra, 571 U.S. at ___, 134 S. Ct. at
1134, 188 L. Ed. 2d at 35.
V.
The judgment of the Appellate Division is affirmed as
modified by this opinion.
CHIEF JUSTICE RABNER and JUSTICE ALBIN, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE PATTERSON filed a separate,
dissenting opinion.
34
SUPREME COURT OF NEW JERSEY
A-15 September Term 2012
070653
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BYSEEM T. COLES,
Defendant-Respondent.
JUSTICE PATTERSON, dissenting.
In its recent decision in Fernandez v. California, 571 U.S.
___, 134 S. Ct. 1126, 188 L. Ed. 2d 25 (2014), the United States
Supreme Court confirmed that an occupant’s consent to a police
search of a residence is effective unless a co-tenant who is
present at the scene objects to the search. The Supreme Court
reaffirmed its holding in Georgia v. Randolph, 547 U.S. 103,
106, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), and settled a
debate about the reach of that decision. Following Fernandez,
supra, federal search and seizure law regarding this issue is
clear: unless there is an objecting co-tenant present at the
scene, or evidence that police removed a co-tenant from the
residence to avoid a potential objection, the consent of a
person with appropriate authority authorizes the warrantless
1
search of a residence. 571 U.S. at ___, 134 S. Ct. at 1134-35,
188 L. Ed. 2d at 35.
In this case, there was no objecting co-tenant present at
the scene. The police did not remove defendant from his home to
forestall a potential objection; defendant was detained
elsewhere and was not at his home when the search was consented
to and conducted. Accordingly, this case does not present a
setting akin to Randolph, the narrow parameters of which were
underscored by the Supreme Court in Fernandez. With the scope
of Randolph having been clarified by Fernandez, it is clear that
this case is not within the limitations of Randolph and that the
police search of defendant’s home simply did not run afoul of
the Fourth Amendment.
Nonetheless, the majority holds that by virtue of an
unlawful detention of defendant a short distance away from the
residence at issue, the consent of defendant’s aunt, Thelma
Coles, did not authorize the search of her home, and that
defendant’s motion to suppress should have been granted. In so
doing, the majority does not expressly state that it diverges
from the federal constitutional principles recently articulated
in Fernandez. Although the majority premises its holding on
Article I, Paragraph 7 of the New Jersey Constitution, it finds
support for its decision in the Supreme Court’s pronouncement in
2
Fernandez, which it interprets to hold that a consent-based
search is unconstitutional “when premised on defendant’s illegal
detention,” no matter where that detention occurs. Ante at ___
(slip op. at 4).
In my view, the majority’s holding simply cannot be squared
with federal precedent. In the wake of Fernandez –- in which
the Supreme Court adamantly limited Randolph to cases involving
a co-tenant who is first present at, and then removed from, the
scene -- the majority nonetheless construes Randolph to govern a
setting devoid of that dispositive factor. Because I do not
concur with the majority’s interpretation of federal law, or its
substantial expansion of New Jersey search and seizure
protections beyond Fourth Amendment parameters, I respectfully
dissent.
I.
The United States Supreme Court’s decision in Fernandez is
the latest in a series of opinions addressing the impact of
consent given by a person with authority over the premises to
the search of a shared home. As the majority notes, the first
such opinion was United States v. Matlock, 415 U.S. 164, 94 S.
Ct. 988, 39 L. Ed. 2d 242 (1974). There, the Supreme Court
upheld a warrantless, consent-based search of a defendant’s home
based on the voluntary consent of a woman with whom the
3
defendant lived after the defendant was arrested in his front
yard and placed in a squad car. Id. at 166, 169, 94 S. Ct. at
991, 992, 39 L. Ed. 2d at 247, 248. The Supreme Court held that
“the consent of one who possesses common authority over premises
or effects is valid as against the absent, nonconsenting person
with whom that authority is shared.” Id. at 170, 94 S. Ct. at
993, 39 L. Ed. 2d at 249. The Supreme Court later applied that
principle set forth in Matlock to permit a search “based upon
the consent of a third party whom the police, at the time of the
entry, reasonably believe[d] . . . possess[ed] common authority
over the premises, but who in fact d[id] not do so.” Illinois
v. Rodriguez, 497 U.S. 177, 179, 186, 110 S. Ct. 2793, 2796,
2800, 111 L. Ed. 2d 148, 155, 160 (1990).
The sole exception to the rule of Matlock was defined by
the Supreme Court in Randolph. There, the defendant was present
at his home shortly after police arrived in response to a
complaint of a domestic dispute. Randolph, supra, 547 U.S. at
107, 126 S. Ct. at 1519, 164 L. Ed. 2d at 217. Although the
defendant’s wife advised police that her husband used drugs and
“volunteered that there were items of drug evidence in the
house,” the defendant “unequivocally refused” to consent to a
search of his home. Ibid. (internal quotation marks omitted).
Police then turned to the defendant’s wife for consent, “which
4
she readily gave.” Ibid. The Supreme Court held that the
evidence generated by the search should have been suppressed,
stating that in the circumstances presented, “a physically
present co-occupant’s stated refusal to permit entry prevails,
rendering the warrantless search unreasonable and invalid as to
him.” Id. at 106, 126 S. Ct. at 1518-19, 164 L. Ed. 2d at 217.
In a passage quoted by the majority here, the Supreme Court
distinguished between a potential objector with self-interest in
objecting who “is in fact at the door” objecting, and a
potential objector who is “nearby but not invited to take part
in the threshold colloquy.” Id. at 121, 126 S. Ct. at 1527, 164
L. Ed. 2d at 226. The former, ruled the Supreme Court, wins the
argument; the latter “loses out.” Ibid.
If the Supreme Court in Randolph left some uncertainty as
to whether its holding would afford Fourth Amendment protections
to a potential objector who is not “in fact at the door” because
he is unlawfully detained elsewhere, there is no longer any such
uncertainty after Fernandez. Although the majority cites
Fernandez for the general proposition that the objective
reasonableness test governs this Fourth Amendment analysis and
that police control over the whereabouts of an absent tenant is
distinct from neutral causes of that absence, the Supreme
5
Court’s holding actually stands for much more. Indeed, it
directly addresses the issue presented in this case.
Fernandez, supra, arose in the context of a police
investigation into an alleged robbery. 571 U.S. at ___, 134 S.
Ct. at 1130, 188 L. Ed. 2d at 30. When officers arrived at the
scene, they observed a man who was later identified as the
defendant run through an alley and into an apartment building.
Id. at ___, 134 S. Ct. at 1130, 188 L. Ed. 2d at 31. Shortly
thereafter, the officers “heard sounds of screaming and fighting
coming from that building.” Ibid. The officers went to the
apartment door, where they were met by a crying and apparently
battered woman. Ibid. They asked the woman to step away from
the door so that they could conduct a protective sweep. Ibid.
Prior to entering, however, the officers immediately encountered
the “[a]pparently agitated” defendant, who vehemently objected
to their entry. Ibid. Suspecting that the defendant had
assaulted the woman, the officers removed the defendant from the
apartment, arrested him, and returned an hour later to search
the apartment with the woman’s consent. Ibid.
The defendant in Fernandez argued that his case fit within
the parameters of Randolph, contending that “his absence should
not [have] matter[ed] since he was absent only because the
police had taken him away.” Id. at ___, 134 S. Ct. at 1134, 188
6
L. Ed. 2d at 35. He also contended that “it was sufficient that
he objected to the search while he was still present,” asserting
that his objection “should remain in effect until the objecting
party no longer wishes to keep the police out of his home.”
Ibid. (internal quotation marks omitted). Rejecting both
arguments, the Supreme Court made clear that the touchstone of
Randolph was the physical presence of the objecting occupant at
the premises when the police sought consent for, and conducted,
the search. Id. at ___, 134 S. Ct. at 1134-35, 188 L. Ed. 2d at
35. Writing for the majority, Justice Alito confirmed that an
authorized occupant’s consent to search is vitiated only by the
objection of a co-tenant present at the scene, or by the police
removal of a co-tenant who was initially at home when the police
arrived, but was removed from the premises in an apparent effort
to forestall an objection. Ibid. The Court noted:
Our opinion in Randolph took great pains to
emphasize that its holding was limited to
situations in which the objecting occupant
is physically present. We therefore refuse
to extend Randolph to the very different
situation in this case, where consent was
provided by an abused woman well after her
male partner had been removed from the
apartment they shared.
[Id. at ___, 134 S. Ct. at 1130, 188 L. Ed.
2d at 30.]
Citing a litany of references in Randolph to the physical
presence of the objecting defendant, the Supreme Court
7
emphasized in Fernandez that its “opinion [in Randolph] went to
great lengths to make clear that its holding was limited to
situations in which the objecting occupant is present. Again
and again, the opinion of the Court stressed this controlling
factor.” Id. at ___, 134 S. Ct. at 1133-34, 188 L. Ed. 2d at
34.
Accordingly, the Supreme Court held that “[t]he Randolph
holding unequivocally requires the presence of the objecting
occupant in every situation other than the one mentioned in the
dictum discussed above.” Id. at ___, 134 S. Ct. at 1134-35, 188
L. Ed. 2d at 35. Importantly, the Supreme Court defined the
Randolph dictum as constrained to the precise situation that it
had addressed in that case. It found that consent by one
occupant is sufficient as long as there is no “evidence that the
police have removed the potentially objecting tenant from the
entrance for the sake of avoiding a possible objection.” Id. at
___, 134 S. Ct. at 1134, 188 L. Ed. 2d at 35 (quoting Randolph,
supra, 547 U.S. at 121, 126 S. Ct. at 1527, 164 L. Ed. 2d at
226-27). Thus, the United States Supreme Court drew a bright
line. It distinguished a co-tenant present at the scene -- who
either directly asserts an objection to a police search or is
initially present and then removed from his home by police to
avoid a confrontation -- from all other objecting occupants of
8
homes searched by virtue of a co-tenant’s consent. Id. at ___,
134 S. Ct. at 1134-35, 188 L. Ed. 2d at 35.
In Fernandez, the Supreme Court further illuminated the
distinction between present and absent co-tenants by commenting
on the functional impact of the rule urged by the defendant in
that case. Id. at ___, 134 S. Ct. at 1135-36, 188 L. Ed. 2d at
36. Dismissing the defendant’s contention that the prior
objection of an absent occupant should remain in effect for a
“reasonable” time, the Supreme Court noted the risk of
miscommunication, confusion and uncertainty that would arise if
an absent occupant’s objections were held to negate a co-
tenant’s valid consent. Id. at ___, 134 S. Ct. at 1135-36, 188
L. Ed. 2d at 36-37. It held that “[i]f Randolph is taken at its
word –- that it applies only when the objector is standing in
the door saying ‘stay out’ when officers propose to make a
consent search –- all of these problems disappear.” Id. at ___,
134 S. Ct. at 1136, 188 L. Ed. 2d at 37. The Supreme Court thus
construed its prior holding in Randolph as unmistakably
requiring either the objector’s personal presence at his or her
home at the time of his or her objection, or his or her removal
from the residence during an encounter with police, before the
officers sought the co-tenant’s consent, as in Randolph. The
United States Supreme Court chose a stark and simple test,
9
identifying as the “controlling factor” for purposes of the
Fourth Amendment “situations in which the objecting occupant is
present” at the home. Id. at ___, 134 S. Ct. at 1133, 188 L.
Ed. 2d at 34.
In my view, this case clearly falls outside of the narrow
category of situations defined by the Supreme Court in Randolph
and Fernandez. Here, the potentially objecting occupant was not
present at the home when the police arrived, or at any time
during the search. Defendant was detained away from his
residence and it was only after his detention that he provided
the police with the name and address of his aunt. He was absent
during the police communications with his aunt that led to her
consent to the search of the residence. The Fernandez rule -–
which requires an objector to be present on the scene in order
for the valid consent of a co-tenant to be nullified -– is
simply not satisfied on these facts.
In short, following Fernandez, I cannot reconcile the
majority’s holding with the United States Supreme Court’s
jurisprudence on this issue. To the extent that the majority
concludes that its decision is supported by federal search and
seizure jurisprudence, I respectfully disagree.
II.
10
Until this decision, this Court has interpreted the
protection afforded by Article I, Paragraph 7 of the New Jersey
Constitution with respect to the issue before the Court to be
coextensive with the reach of the Fourth Amendment. This Court
and the Appellate Division have repeatedly adopted and applied
the principles of Matlock, supra, 415 U.S. 164, 94 S. Ct. 988,
39 L. Ed. 2d 242 and Rodriguez, supra, 497 U.S. 177, 110 S. Ct.
2793, 111 L. Ed. 2d 148 in a variety of settings. See, e.g.,
State v. Maristany, 133 N.J. 299, 305 (1993) (stating, in
reliance on Matlock and Rodriguez, that “[c]onsent may be
obtained . . . from a third party who possesses common authority
over the property, or from a third party whom the police
reasonably believe has authority to consent”) (internal
citations omitted); State v. Suazo, 133 N.J. 315, 320-21 (1993)
(same); State v. Coyle, 119 N.J. 194, 215 (1990) (stating, in
reliance on Matlock, that third party with common authority over
residence can consent to search); State v. Crumb, 307 N.J.
Super. 204, 243 (App. Div. 1997) (same), certif. denied, 153
N.J. 215 (1998).
Indeed, in our unanimous decision on a residential consent
search in State v. Lamb, ___ N.J. ___ (2014), issued today, we
interpret our jurisprudence to be guided by and consistent with
Randolph and Fernandez. Lamb arose from a setting different
11
from that of this case. There, an initially objecting co-tenant
was present at the scene, and then left the house, never
renewing his objection. Id. at ___ (slip op. at 2). It raises,
however, the same general issue as this case: the
constitutionality of a search conducted with the consent of one
occupant in light of the potential objection of another occupant
who shares authority over the premises. Id. at ___ (slip op. at
9-10). Relying on the United States Supreme Court’s decisions
in Fernandez and Randolph, the Court in Lamb rejected the
defendant’s argument that his stepfather’s objection to a search
consented to by his mother required suppression. Id. at ___
(slip op. at 23-25). The Court applied Fernandez to reject the
defendant’s expansive interpretation of Randolph. Id. at ___
(slip op. at 25).
Thus, in my view, the Court has properly embraced and
applied the United States Supreme Court’s analysis of this issue
in cases other than this one, up to and including today’s
decision in Lamb. As this Court has noted, “we proceed
cautiously before declaring rights under our state Constitution
that differ significantly from those enumerated by the United
States Supreme Court in its interpretation of the federal
Constitution.” Right to Choose v. Byrne, 91 N.J. 287, 301
(1982) (citing State v. Hunt, 91 N.J. 338, 344-45 (1982)). That
12
“caution emanates, in part, from our recognition of the general
advisability in a federal system of uniform interpretation of
identical constitutional provisions.” Ibid. In the search and
seizure setting, “enforcement of criminal laws in federal and
state courts, sometimes involving the identical episodes,
encourages application of uniform rules.” Hunt, supra, 91 N.J.
at 345.
When it has decided to afford more expansive rights under
the New Jersey Constitution than exist in federal law in a
search and seizure case, this Court has identified its reasons
for concluding that the decisions of the United States Supreme
Court do not adequately vindicate the constitutional right at
issue. See, e.g., State v. Brown, 216 N.J. 508, 528-29 (2014)
(stating New Jersey’s rule regarding standing to file motion to
suppress); State v. Novembrino, 105 N.J. 95, 157-58 (1987)
(declining to recognize good-faith exception to exclusionary
rule); Hunt, supra, 91 N.J. at 345 (articulating “[s]ound policy
reasons” for departure from federal law with respect to police
access to telephone billing records). This case, I respectfully
submit, presents no reason for New Jersey search and seizure law
to deviate from Fourth Amendment jurisprudence. Consistent with
the standard of objective reasonableness that governs Fourth
Amendment analysis, the Supreme Court’s holdings in Randolph and
13
Fernandez require police officers to respect a present
occupant’s manifest objection to a search, but do not compel
them to engage in speculation about what an absent person would
have done or said, had he or she been at home when police
arrived. With no “objector . . . standing in the door saying
‘stay out,’” in this case, Fernandez, supra, 571 U.S. at ___,
134 S. Ct. at 1136, 188 L. Ed. 2d at 37, the majority
necessarily assumes that had he been released, defendant would
have returned home immediately and objected to the search of the
residence -- notwithstanding the consent of his aunt, who was
evidently the senior member of a three-generation household. In
my view, given the rapid decisions that must be made by law
enforcement as an investigation unfolds, the majority’s opinion
risks miscommunication and introduces uncertainty, which is
precisely what the Supreme Court sought to eliminate with the
bright-line rule announced in Fernandez.
In sum, I would interpret Article I, Paragraph 7 in
alignment with the Fourth Amendment analysis set forth in
Randolph and Fernandez, and would accordingly reverse the
Appellate Division’s determination. I respectfully dissent.
14
SUPREME COURT OF NEW JERSEY
NO. A-15 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BYSEEM T. COLES,
Defendant-Respondent.
DECIDED May 19, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Patterson
AFFIRM AS
CHECKLIST REVERSE
MODIFIED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 1
1