SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
STATE
v.
BYSEEM T. COLES,
________________________________________________________________
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Submitted March 20, 2012 - Decided
Before Judges Fisher, Baxter and Maven.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Indictment No. 09-08-2780.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel V. Gautieri, Assistant Public Defender, of counsel and on the
brief).
Jeffrey S. Chiesa, Attorney General, attorney for
respondent (Hillary Horton, Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Following
the entry of a guilty plea to the second-degree crime of certain persons not to possess weapons, N.J.S.A.
2C:39-7(b), defendant Byseem T. Coles appeals the denial of his motion to
suppress the guns found in his bedroom in his aunt's home. We agree with defendant's contention
that his aunt did not have common authority over his bedroom, and therefore
could not consent to the search.
Moreover, 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. We reverse the denial of
defendant's motion to suppress.[1]
I.
On
May 19, 2009, at approximately 11:30 p.m., Sergeant Zsakhiem James of the
Camden Police Department received a dispatch directing him to proceed to the
1100 block of Lakeshore Drive to investigate the report of a robbery in that
area. The dispatcher told him that
the victim provided a description of the suspect, stating he was a black male
wearing black pants and a gray hooded sweatshirt, with a mask obscuring his
face. The victim informed the police
that her assailant fled on Lakeshore Drive toward the intersection of 12th
Street and Lakeshore. Within
minutes, James arrived at that location, and almost immediately, saw defendant,
who "was the only male on the street." Because defendant's clothing "exactly" matched the
description the victim had provided, James exited his vehicle and approached
defendant. James left his K-9
partner in the back of his patrol vehicle.
James
testified that he asked defendant "where he was coming from." Defendant's
response and demeanor caused James to become suspicious, especially when
defendant began "looking around as he if was going to run." At that point, James decided to detain
him; however, James called for another police unit because the dog took up the
entire rear area of James's patrol car.
When
the other police officer arrived, the two officers patted defendant down for
weapons, found none and secured him in the back of the second police
vehicle. When asked for his
address and identification, defendant provided a specific address in the
1200-block of Lakeshore Drive, but was unable to provide any identification.
James testified that he asked for identification to definitively establish
defendant's identity, because there had been a number of robberies in the area in
which suspects had been providing false addresses when stopped and
questioned.
James
asked defendant if there was anyone home who would be able to identify him. Defendant responded that his aunt and
cousin were home. In the meantime,
the victim was brought to the scene, but was unable to identify defendant. She stated that although defendant was
wearing "the exact same clothes" as her assailant, she was unable to
identify him "by face because the robber had a mask on." In light of the victim's statement that
defendant was wearing "the exact same clothes," James decided to
conduct a further investigation.
With defendant still seated in the rear of the police vehicle, James
proceeded to the address on Lakeshore Drive that defendant had provided, which
was only "six houses" away from where defendant was secured in the
rear of the police vehicle.
Upon
arriving at the house, owned by defendant's aunt, Thelma Coles, James informed
her that he was in the process of investigating a robbery and had in his
custody Byseem Coles, who claimed to live at that address. Ms. Coles responded that it was not
possible for police to have her nephew in custody because "she just heard
him inside . . . his room moving and banging around." James did not ask defendant's aunt to
come outside and look in the police vehicle to determine if the person in
police custody was indeed her nephew.
Instead, Ms. Coles sent a family member upstairs to check, and learned
that defendant was not home.
At
that point, James asked Ms. Coles for permission to search defendant's bedroom because
James believed that defendant may have "run into his room, . . . dropped
off the weapon and then come back out." To be certain that Ms. Coles possessed the authority to
consent to the search of defendant's bedroom, James asked her if she was the
homeowner, and whether defendant resided at the house, to which she answered in
the affirmative. James testified
that he specifically advised Ms. Coles that she had the right to refuse
consent. Although he sought
permission to search the "entire home," James told Ms. Coles that his
main concern was defendant's bedroom.
Although several of the adults in the home were urging Ms. Coles to
refuse to consent, she ultimately agreed to allow James and the other three
officers to search defendant's bedroom, and signed a written consent form.
She
followed James to the second floor, and pointed to defendant's bedroom. James noticed a padlock hanging from
the door of defendant's bedroom. When James asked her about the padlock, and
specifically asked her if she had access to the room, she stated that she
sometimes "slept in that room, and just slept in that room
recently." She also explained
that she had placed the padlock on the door before defendant moved in because
"she didn't want her grandchildren getting into other people's
stuff."
Because
the door to defendant's bedroom was ajar, James was able to enter the room
merely by pushing the door open.
Upon entering the room, James began visually surveying its contents,
looking for places where evidence relating to the reported robbery, such as a
handgun, a purse or its contents, might be hidden. Opening the closet, James observed a black and yellow duffle
bag in the lower right side of the closet. When he grabbed the duffle bag to move it out of the way,
James was able to immediately determine that there was a shotgun inside. James explained that he was familiar
with the feel of a shotgun grip because he owned one himself. When the original duffle bag was moved,
a gray and black bag underneath it fell and made a loud "thump." James observed a rifle equipped with a
fifteen-round magazine inside the unzipped gray and black bag. A further examination of the contents of
the two duffle bags revealed various types of ammunition.
Informing
Ms. Coles of the guns he had located, James asked her if she wanted him to
continue searching to ensure that there were no more weapons in the room. According to James, Ms. Coles stated
that she wanted all of the weapons removed from the house. Returning to defendant's bedroom,
accompanied by Ms. Coles, James found in a drawer a substantial quantity of
ammunition that did not correspond with the two firearms that he had already
located. Observing a vent cover on
the floor that "didn't look right," James lifted the vent and
observed two shotguns buried in the floor boards. He also found more ammunition in a safe in the corner of the
room.
On
cross-examination, James acknowledged that although his "only reason"
for proceeding to defendant's aunt's house was "[t]o obtain
identification," he nonetheless proceeded to ask Ms. Coles for her consent
to search. He insisted that he
sought such permission because "things [were] not mixing, it just seemed
that there was something wrong. We
needed to further investigate."
Ms.
Coles testified on behalf of defendant, explaining that defendant used the
padlock at her request whenever he left the house with the intention of
"going somewhere far." She
also testified that she encouraged him to use the lock on the door because
there were "children in the house" who "like[d] to go in the
room and mess with the games and whatnot."
Ms.
Coles explained that on the occasions when her own father was visiting, she
slept in defendant's room, and defendant, in turn, would sleep at his mother's
home. But when defendant was
there, he slept in the bedroom, and Ms. Coles "went down on the couch
[because] [t]hat was his room."
When
asked when she last stayed overnight in defendant's bedroom, Ms. Coles answered
that she was unable to recall the specific month. She explained that defendant paid her $250 in rent every
month. However, "if he wasn't
there, he didn't have to pay the rent." She noted that defendant did not always pay the rent all at
once, but paid it "dollars here and dollars there, . . . like kids
do."
In
an oral opinion rendered at the conclusion of the hearing, and in a supplemental
written opinion, the judge denied defendant's motion to suppress. First addressing the stop of defendant,
the judge held that police had the requisite reasonable suspicion to conduct an
investigatory stop of defendant, as defendant's clothing matched the
description provided by the victim, and defendant was the only male found in
the area shortly after the victim was robbed. Next, the judge reasoned that the search of defendant's
bedroom, and of its contents, was lawful based upon the consent to search
provided by Ms. Coles, who, according to the judge, possessed common authority
over defendant's bedroom. In upholding
the seizure of the guns from the closed black and yellow duffle bag, and then
from the open gray and black duffle bag, the judge concluded that the seizure
of the guns from each of the bags was justified, respectively, by the plain
feel and plain view exceptions to the warrant requirement. As for the seizure of the additional
weapons found under the floor vent, the judge determined that the community
caretaking exception to the warrant requirement justified that particular
search and ensuing seizure.
On
appeal, defendant raises the following claims:
I. THE
COURT ERRED IN DENYING [DEFENDANT'S] SUPPRESSION MOTION, BECAUSE: [DEFENDANT'S]
INITIAL DETENTION DID NOT MEET THE REQUIRED LEGAL STANDARD; THE DEFENDANT'S
AUNT DID NOT HAVE AUTHORITY TO CONSENT TO A SEARCH OF [HIS] ROOM; AND THE
AUNT'S CONSENT WAS NOT VOLUNTARY.
A. [Defendant's] Initial Detention Did Not Meet the
Required Legal Standard Because the Stop Was Too Prolonged and Invasive to
Constitute a Terry[2]
Stop, and the Officer Lacked Probable Cause to Arrest.
B. The Search of [defendant's] Room Violated His
Fourth Amendment Rights, Because Ms. Coles Did Not Have the Authority to
Consent to the Search of Her Tenant's Room.
C. Ms.
Coles's Consent was Not Voluntary, Because She Initially Refused Consent to
Search, and the Sergeant Threatened to Get a Warrant, Where He Knew He Lacked
Probable Cause to Search.
II.
Although
we are obliged to accept the judge's findings of fact so long as they are
supported by substantial and credible evidence in the record, State v.
Locurto, 157 N.J. 463, 470-71 (1999), we owe no deference to the
judge's legal conclusions, which we review de novo, State v. Gandhi, 201
N.J. 161, 176 (2010).
Warrantless searches and seizures are presumptively unreasonable, and
will only be sustained when falling within a recognized exception to the
warrant requirement. State v.
Johnson, 193 N.J. 528, 552 (2008). The burden is on the State, as the party seeking to uphold a
warrantless search, to prove by a preponderance of the evidence that such
search falls within one of the recognized exceptions. State v. Pineiro, 181 N.J. 13, 19-20
(2004). Here, the State relies on
the third-party consent to search issued by defendant's aunt as a justification
for the warrantless entry into defendant's bedroom and for the initial
search.
Before
addressing the requirements of the consent exception to the warrant
requirement, we begin by reviewing the context in which we must evaluate the
State's reliance on any of the exceptions to the warrant requirement:
The
Fourth Amendment proscribes . . . searches and seizures that are . . .
unreasonable. Indeed, the
touchstone of the Fourth Amendment is reasonableness. Fourth Amendment issues are complex and are peculiarly
dependent upon the facts involved.
[State v. Crumb, 307 N.J. Super.
204, 245 (App. Div. 1997) (citations and internal quotation marks omitted), certif.
denied, 153 N.J. 215 (1998).]
We are obliged to consider the
overall reasonableness of the search in the totality of the circumstances, and
must avoid applying in a vacuum the exceptions to the warrant requirement. See ibid.
To
justify the search of defendant's bedroom based upon his aunt's written
consent, the State must prove that Ms. Coles possessed "'common authority
over or other sufficient relationship to the premises or effects sought to be
inspected.'" Id. at
243 (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S.
Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)). "A valid consent may be obtained
from one other than the accused, i.e., from a third party, so long as the
consenting third party has the authority to bind the accused." State v. Douglas, 204 N.J.
Super. 265, 276 (App. Div.), certif. denied, 102 N.J. 378 (1985).
When
the State relies on a consent to search that is issued by a third party, the
State "must first prove that the consent was freely and voluntarily
given." Ibid. In Douglas, when discussing Matlock,
we identified two distinct rationales for the "common authority"
rule: 1) that the consenting party
had authority in his or her own right to provide such authorization; and 2) the
defendant had "assumed the risk" that the co-occupant might permit a
search. Id. at 277
(citation and internal quotation marks omitted). Of significance here, when another person has a right of
possession and control over the premises that is "equal or superior to
those of the suspect[,]" such other person may consent to a search. Ibid. (citation omitted).
In
concluding that Ms. Coles had common authority over defendant's bedroom, and
that defendant did not possess rights superior to those of his aunt, the judge
relied upon our observation in Crumb, supra, 307 N.J. Super.
at 244-45, that where the rental agreement is "informal," a police
officer would be justified in believing that the third party had authority to
admit the police into the bedroom.
Such reliance on that portion of our opinion in Crumb was
misplaced for several reasons.
First, although we ultimately upheld the search based upon the consent issued by the defendant's mother, id. at 245-46, the "informal" nature of the
mother-son rental arrangement played no role in that conclusion, because, as we
observed, the trial judge had "rejected [the mother's] testimony that
defendant[, her son,] paid rent" at all. Id. at 245.
Instead, our approval of the consent to search issued by the defendant's
mother in Crumb was premised upon several factors, none of which is
present here. First, and foremost,
we relied on the well-accepted doctrine, recognized by "the overwhelming
majority of courts," that "a parent has the right to consent to the search of the property of his or her son or
daughter . . . [e]ven in cases where the child has reached adulthood[.]" Id. at 243-44.
Moreover,
in Crumb, a police officer would have reasonably believed that the
defendant's mother had authority to admit the police authorities into the
defendant's bedroom, as all of the family members had access to the defendant's room because the door "was
off . . . the hinges and leaning against the wall inside of the
room." Id. at
245. In light of those
circumstances -- especially the superior right of a parent to control access to
a child's bedroom -- we concluded that the defendant's mother possessed
superior authority over the defendant's bedroom and possessed the authority to
permit the police to search it. Id.
at 245-46.
Here,
in contrast, the primacy of a parent's control over the home is absent, as Ms.
Coles was defendant's aunt, not his mother. Further, had the police inquired, they would have learned
that there was an established rental relationship, with defendant paying
monthly rent of $250, a factor that is often cited as authority for the
occupant of the bedroom having exclusive right to control access. Id. at 244.
In
finding that Ms. Coles was not defendant's landlady -- even though defendant
paid her $250 a month in rent -- the judge relied on the fact that defendant
did not pay the money in a single lump sum at the beginning of the month, but
rather over the course of the month.
The judge also relied on the fact that defendant was not obligated to
pay rent while he was not living there.
However, as defendant correctly argues, the judge's findings on this
subject are at odds with the Court's holding in State v. Coyle, 119 N.J.
194, 217 (1990), that the formality or informality of a rental arrangement does
not grant a landlord the authority to consent to a search of the tenant's
apartment. For these reasons, we
part company with the judge's conclusion that the "informality" of
the rental arrangement leads to the conclusion that Ms. Coles was not
defendant's landlady, and was instead a person with "common
authority" over the premises, Matlock, supra, 415 U.S.
at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 249-50, who was
consequently entitled to consent to a search of defendant's room.
The
judge's reliance on the "informality" of the rental agreement was
problematic for yet another reason
The judge's conclusion ignored a critical principle: with rare exceptions, a landlord lacks
authority to consent to the search of a tenant's premises. Chapman v. United States, 365 U.S. 610,
616-17, 81 St. Ct. 776, 779-80, 5 L. Ed. 2d 828, 833 (1961); State
v. Scrotsky, 39 N.J. 410, 415-16 (1963) (holding that a landlady
could not consent to a search of her tenant's apartment). Even if the landlord has the right to
access the tenant's room for "limited purposes," that circumstance "does
not give a landlord authority to consent to a search." Coyle, supra, 119 N.J.
at 216. For that reason, the fact
that Ms. Coles had a key to defendant's room, and slept there on the occasions
when her father was present, was of no significance. As
defendant's landlady, she lacked
authority to consent to a search of his room. Scrotsky, supra, 39 N.J. at 415-16.
Apart
from our rejection of the judge's conclusion that Ms. Coles had "common
authority," there is yet another reason why we cannot uphold the denial of
defendant's motion to suppress. In
evaluating the overall reasonableness of the search and the totality of the
circumstances, as Crumb, supra, 307 N.J. Super. at 245,
requires, we cannot ignore the fact that the very person with the superior
right to control access to the room was defendant himself. Yet the police chose to ignore him
completely and to instead secure consent to search from his aunt. It bears repeating that defendant was
in police custody a mere six houses away on Lakeshore Drive. The State offers no reason why the police
did not ask defendant for his consent.
Their failure to do so was unreasonable.
In
particular, after the victim was brought to the scene, and was unable to
identify defendant as her assailant, the continued detention of defendant in
the rear of the police vehicle was of questionable validity. See State v. Mann, 203 N.J.
328, 338 (2010) (requiring a reasonable and articulable suspicion of criminal
activity as a justification for an investigatory stop). Police are prohibited from removing a
potentially objecting co-tenant from the scene as a method of avoiding the risk
that the absent co-tenant will refuse to consent to the search. Georgia v. Randolph, 547 U.S.
103, 121, 126 S. Ct. 1515, 1527, 164 L. Ed. 2d 208, 226-27
(2006). The questionable validity
of defendant's continued detention implicates Randolph, as it raises the
distinct possibility that the police kept defendant in custody -- even after
all reasonable suspicion had evaporated -- as a method of avoiding the risk
that he would object to the search of his bedroom. Such a scenario reinforces our conclusion that under the
totality of the circumstances, the search was unlawful.
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[1] In light of
our determination that defendant's aunt lacked the authority to consent to the
search of defendant's bedroom, we need not reach defendant's additional
arguments that his aunt's consent was coerced (Point I.C) and that his initial
detention was unlawful (Point I.A).
