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Wednesday, July 18, 2012

STATE v. Coles

                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-2954-10T2




April 11, 2012

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).


            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]

            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:


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.


            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.
            Reversed and remanded for the ent
ry of an order granting defendant's motion to suppress.

[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).
[2] Terry  v.  Ohio,  392  U.S.  1,  88  S. Ct.  1868,  20  L. Ed. 2d 889 (1968).