State v. Suazo

The opinion of the Court was delivered by

STEIN, J.

The present appeal, like the companion case, State v. Maristany, 133 N.J. 299, 627 A.2d 1066, also decided today, addresses the validity of a search of luggage contained in the trunk of a car based on the driver’s consent. In Maristany we expressed the view that ordinarily a law-enforcement officer may reasonably rely on the apparent authority of the driver of a vehicle to consent to a search of the car and its contents, absent evidence to suggest that the driver is not the owner of the property sought to be searched. Id. at 306, 627 A.2d at 1069. In this appeal, we consider the reasonableness of a State Trooper’s reliance on the driver’s consent to search in view of a passenger’s claim of ownership of luggage found in the vehicle.

I

On April 21, 1990, State Trooper Edwin Torres was patrolling Interstate 95 near Ridgefield Borough when he observed a gold Toyota with out-of-state license plates weaving within the right-hand lane at forty-five miles per hour. Torres stopped the car and asked the driver, defendant Ramon Suazo, for his driving credentials. Suazo produced his license and a registration indicating that Suazo’s sister owned the vehicle.

In order to determine whether Suazo was intoxicated, Torres asked Suazo to get out of the vehicle. Torres and Suazo walked to the rear of the car; the passenger, defendant Nelson Hoyer, remained inside. (Henceforth, reference to “defendant” is to Hoyer, the only defendant before us on this appeal). The trooper questioned Suazo about his erratic driving. Suazo claimed that he had not been drinking. He explained that he and his passenger had been traveling together for “a week or so,” and that he was exhausted, having driven from Georgia with only a short rest. When asked whether defendant could have shared the driving, Suazo stated that he did not know if his passenger had a driver’s license. In addition, Suazo claimed that he did not know his passenger’s last name.

Torres then questioned defendant. ' Defendant stated that he and Suazo had been traveling “just a couple days.” Defendant claimed that they had been in the south and were now “heading home.” When Torres asked defendant where “home” was, defendant replied that he was from Venezuela and had no United States residence.

In view of the conflicting responses, Torres returned to the rear of the vehicle and requested Suazo’s consent to search the car. Torres advised Suazo of his right to refuse consent. Suazo acquiesced in the search and signed a consent-to-search form authorizing Trooper Torres to conduct a “complete search of [the] vehicle.”

Defendant and Suazo stood alongside the car while Torres searched the passenger compartment. He found no contraband. In the trunk, Torres found a "clutter of articles,” including a red nylon clothes bag. The bag contained no tags identifying the owner. As Torres removed the red bag irom the trunk, defendant stated that the bag belonged to him. Nevertheless, Torres proceeded to open the bag and found several articles of clothing and a brown paper bag. Inside the paper bag, Torres discovered four brown packages. Torres asked defendant and Suazo to identify the packages. Both men denied knowledge of their contents. Torres opened one package, discovered a white powdery substance, and seized the evidence, later identified as four kilograms of cocaine.

Defendant was indicted for possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(l), and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(l) and 5b(l). Defendant filed a motion to suppress the evidence, contending that Suazo’s consent to search the vehicle had not been valid with respect to the bag allegedly owned by defendant.

Finding that the evidence adduced at the suppression hearing did not clearly establish the actual owner of the red bag, the trial court denied the motion to suppress. The court noted that although defendant had stated that the bag was his, he had denied any knowledge of the bag’s contents. The court concluded that in view of the conflicting statements, Torres reasonably might have doubted defendant’s claimed ownership of the red bag.

Defendant entered a conditional guilty plea to possession of a controlled dangerous substance with intent to distribute. In exchange, the State dismissed the remaining charge and recommended a maximum sentence of twelve years imprisonment. Defendant was sentenced to twelve years imprisonment with a four-year period of parole ineligibility.

Defendant appealed, arguing that he had been illegally detained without probable cause and challenging the trial court’s denial of the motion to' suppress. In an unreported opinion, the Appellate Division affirmed, the panel members offering separate grounds on which to sustain the search with respect to defendant. The opinion of the court concluded that the search of the red bag was valid, based on the “objective indicia of Suazo’s common authority over the car and its contents.” The court found that the lack of objective proof of the bag’s ownership, defendant’s failure to protest the search, and defendant’s claimed ignorance of the bag’s contents justified the trooper’s reliance on Suazo’s consent. In a concurring opinion, two members concluded that Suazo’s consent had not authorized a search of defendant’s personal property. However, they found that defendant implicitly had consented to the search by remaining silent as the trooper searched the bag. We granted defendant’s petition for certification, 130 N.J. 601, 617 A.2d 1223 (1992).

II

When preceded by valid consent, a warrantless search of property is permissible under the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2044, 36 L.Ed.2d 854, 858 (1973); State v. Johnson, 68 N.J. 349, 353-54, 346 A.2d 66 (1975). Consent must be voluntary and the consenting party must understand his or her right to refuse. Ibid.

We previously have acknowledged that valid consent may be obtained from one other than the accused. See State v. Coyle, 119 N.J. 194, 215, 574 A.2d 951 (1990). A third party who possesses “common authority over or other sufficient relationship” to the property sought to be inspected may consent to its search. United States v. Matlock, 415 US. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250 (1974). That authority to consent arises from the “mutual use of the property by persons generally having joint access or control for most purposes * * *.” Id. at 171 n. 7, 94 S.Ct. at 993 n. 7, 39 L.Ed.2d at 250 n. 7.

A third party who possesses the authority to consent to a search of premises generally, however, may lack the authority to consent to a search of specific containers found on those premises. United States v. Block, 590 F.2d 535, 541 (4th Cir.1978); Coyle, supra, 119 N.J. at 217, 574 A.2d 951. For example, a third party’s consent does not extend to containers in which the consenting party has disclaimed ownership. State v. Lee, 245 N.J.Super. 441, 447, 586 A.2d 256 (App.Div.1991). Further, a third party’s consent is invalid with respect to property within the exclusive use and control of another. United States v. Poole, 307 F.Supp. 1185, 1189 (E.D.La.1969); Silva v. State, 344 So.2d 559, 563 (Fla.1977); State v. Johnson, 85 N.M. 465, 467, 513 P.2d 399, 401 (App.1973).

Nevertheless, if a law-enforcement officer at the time of the search erroneously, but reasonably, believed that a third party possessed common authority over the property to be searched, a warrantless search based on that third party’s consent is permissible under the Fourth Amendment. Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148, 160 (1990). In assessing an officer’s reliance on a third party’s consent, we consider 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. Id. at 188-89, 110 S.Ct. at 2801, 111 L.Ed.2d at 161; State v. Bruzzese, 94 N.J. 210, 219, 221, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984).

Ill

Applying those principles to the search of a vehicle, courts have concluded that because a driver has immediate possession of and control over the car, he or she may consent to its search. See United States v. Eldridge, 984 A.2d 943, 948 (8th Cir.1993); United States v. Dunkley, 911 F.2d 522, 526 (11th Cir.1990), cert. denied, 498 U.S. 1096, 111 S.Ct. 987, 112 L.Ed.2d 1071 (1991); United States v. Morales, 861 A.2d 396, 399 (3d Cir.1988); State v. Walton, 565 So.2d 381, 383 (Fla.Dist.Ct.App.1990); People v. Mendoza, 234 Ill.App.3d 826, 175 Ill.Dec. 361, 367, 599 N.E.2d 1375, 1381 (1992). However, in the absence of evidence of joint access to or control over property found in the vehicle, a driver’s apparent authority to consent to a search of the car does not include the authority to permit a search of the personal belongings of other passengers. See United States v. Padron, 657 F.Supp. 840, 847 (D.Del.1987), aff'd sub nom. United States v. Rubio, 857 A.2d 1466 (3d Cir.), cert. denied, 488 U.S. 974, 109 S.Ct. 512, 102 L.Ed.2d 547 (1988); Ledda v. State, 564 A.2d 1125, 1129 (Del.1989); State v. Santana, 215 N.J.Super. 63, 69, 521 A.2d 346 (App.Div.1987); State v. Lynch, 94 Or.App. 168, 764 P.2d 957, 959 (1988); State v. Zachodni, 466 N.W.2d 624, 628 (S.D.1991). But see United States v. Anderson, 859 A.2d 1171, 1176-77 (3d Cir. 1988); United States v. Varona-Algos, 819 A.2d 81, 83 (5th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 255 (1987); Walton, supra, 565 So.2d at 383-84; State v. Rawls, 552 So.2d 764, 767 (La.Ct.App.1989).

Courts that have expressed the view that a driver’s authority to consent to a search of the vehicle includes the authority to consent to a search of containers found in the car have considered the passenger’s failure to claim ownership or object to the search material in assessing the extent of the driver’s authority to consent. See Anderson, supra, 859 A.2d at 1177 (finding passenger’s failure to object to search of personal belongings inconsistent with claim of expectation of privacy); Varona-Algos, supra, 819 F.2d at 83 (sustaining search of passenger’s luggage in view of passenger’s “standing by and equivocally acknowledging that the bag was his”); Walton, supra, 565 So.2d at 383-84 (suggesting that search based on driver’s consent would have been invalid had passenger protested and claimed ownership of suitcase); Rawls, supra, 552 So.2d at 767 (noting that at time of search passenger failed to assert ownership or possessory interest in luggage and did not attempt to limit or terminate driver’s consent).

In view of defendant’s assertion of ownership of the red bag, we are impelled to conclude that Trooper Torres’ reliance, without further inquiry, on Suazo’s consent to search the vehicle was unreasonable. Although Suazo clearly had the authority to consent to a search of the vehicle, defendant’s claim of ownership put the trooper on notice that someone other than the consenting party might have a superior privacy interest in the red bag. When circumstances suggest that the property to be searched belongs to someone other than the consenting party, the validity of the third-party consent becomes questionable.

As we noted in Maristany, supra, 133 N.J. at 308, 627 A.2d at 1070, the preferred procedure for law-enforcement officers seeking consent to search one of several pieces of luggage in a car with more than one occupant is for the officers to determine which occupant owns each item of luggage, so that the officers’ reliance on consent to search may be justifiable. Although adherence to that procedure is not determinative of the validity of a search, defendant’s acknowledgment that he owned the red bag impelled Trooper Torres either to seek defendant’s consent or to make further inquiry before opening the bag.

Further, based on the record before us, we cannot conclude that defendant implicitly had consented to a search of the red bag. Clearly, a consent sufficient to avoid the necessity of a search warrant may be implied from all of the attendant circumstances. State v. Koedatich, 112 N.J. 225, 262, 548 A.2d 939 (1988). The Appellate Division found that the circumstances of the search, including defendant’s “incidental claim of ownership, and [ ] lack of objection and apparent acquiescence as the bag was opened,” constituted implied consent. The Appellate Division correctly noted that the presence and silence of a co-occupant may lend authority to a search. See Anderson, supra, 859 F.2d at 1177; Varona-Algos, supra, 819 F.2d at 83; Rawls, supra, 552 So.2d at 767. However, as we stated in Johnson, supra, assent to a search is meaningless unless the consenting party understood his or her right to refuse consent. 68 N.J. at 353-54, 346 A.2d 66. Absent evidence to suggest that defendant was aware of his right to object to the search of the red bag, we are unwilling to equate defendant’s silence with a knowing waiver of a constitutional right.

IV

The judgment of the Appellate Division is reversed and the matter remanded for retrial. In view of our disposition, we need not address the legality of. defendant’s initial detention.