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Full Opinion
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. Michael W. Lamb (A-37-12) (071262)
Argued October 22, 2013 -- Decided May 19, 2014
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers the validity of a warrantless search of a house, specifically addressing
whether the knowing and voluntary consent by an occupant to search a premises is constitutionally effective against
a third party when an absent co-occupant has objected to the search.
On July 3, 2009, Pennsville police received a report of a shooting on a city street. The victims told police
that defendant Michael W. Lamb pulled up next to them in a car driven by his girlfriend, Jennifer Garcia. Garcia
stopped the car and defendant questioned the victims about the location of another man. After going back and forth
about whether the victims knew the man, defendant produced a handgun. One victim reached through the car
window, grabbed defendant’s arm and pushed the gun toward the floor. Garcia started to drive away, and defendant
fired at the victims as they ran into a nearby yard.
Outside of a home in the community where defendant allegedly lived, Pennsville Township Police
Detective Greg Acton located two cars matching the description provided by the victims. Acton and another officer
knocked on the door multiple times while defendant’s stepfather, Steven Marcus, yelled that they should leave.
Although Marcus ultimately opened the door, he insisted defendant was not there and again demanded that the
officers leave the premises. Acton removed Garcia from the house when she approached the front door. She told
Acton that defendant was hiding under the bed in the room they shared and confirmed that she had been driving the
car, that she saw the gun, and that defendant fired a shot into the air. According to Garcia, in addition to defendant
and Marcus, three young children and defendant’s mother, Karen Marcus, were in the house.
Police called the residence in an effort to persuade either defendant or Marcus to come outside. Once
Marcus left the home, he was placed in custody and removed from the area. At the insistence of his mother,
defendant also left and was arrested. Acton then spoke to Karen, who later admitted that she signed a consent-to-
search form after being told the police would obtain a search warrant if she refused. She explained that one of her
young children was distraught, she did not want her new home torn apart in a search, and she was upset about her
son’s behavior. Karen took the officers to defendant’s room, where they found a handgun.
Defendant was indicted on two counts of attempted murder, four counts of aggravated assault, one count of
unlawful possession of a handgun, and one count of possession of a handgun for an unlawful purpose. He moved to
suppress the evidence seized from his bedroom, arguing that Karen’s will was overborne by police. The trial court
denied the motion, finding that Karen acted voluntarily and without coercion. The court noted that although Karen
undoubtedly was upset and fearful, these emotions did not overwhelm her ability to consent to a search. Moreover,
the court concluded that the police had no obligation to leave the premises as directed by Marcus, explaining that his
earlier refusal to permit entry did not nullify Karen’s subsequent consent. Defendant entered a conditional guilty
plea to second-degree unlawful possession of a handgun and was sentenced to a five-year prison term subject to
three years of parole ineligibility.
Defendant appealed the denial of his motion to suppress. The Appellate Division affirmed, finding that
Karen knowingly consented to the search. It agreed that her consent was not nullified by Marcus’s earlier refusal,
emphasizing that Marcus was not present when Karen consented, his refusal was not contemporaneous, and there
was no evidence he was removed from the home to avoid his objection. The Court granted defendant’s petition for
certification limited to the issue of whether consent by an occupant to search a premises is constitutionally effective
against a third party when an absent co-occupant has objected to the search. 213 N.J. 531 (2013).
1
HELD: Under the circumstances of this appeal, an occupant’s knowing and voluntary consent to search a premises
is constitutionally effective against a third party and is not nullified by the prior objections of an absent co-occupant
whose absence is not the result of a police effort to avoid an objection.
1. Appellate courts reviewing the grant or denial of a motion to suppress are required to uphold the trial court’s
factual findings when supported by sufficient credible evidence, reversing only when demanded by the interests of
justice. Deference is not given to a trial court’s interpretation of the law, which is reviewed de novo. (p. 14)
2. Under the automatic standing rule, virtually all defendants are permitted to contest a search or seizure where they
have either a possessory, participatory or proprietary interest in the place searched or property seized, or if
possession of the seized evidence is an essential element of guilt. Here, defendant has automatic standing to contest
the search and seizure since he clearly had a possessory interest in the seized handgun, possession of which is an
essential element in several of the charged offenses. (pp. 14-16)
3. The preference for police officers to obtain a warrant prior to searching an individual’s home arises from the
Fourth Amendment of the United States Constitution and Article I of the New Jersey Constitution, which guarantee
the right to be free of unreasonable searches and seizures in one’s home. Where consent to search is freely and
voluntarily given, it is a recognized exception to the warrant requirement. If multiple people reside in the same
home, any occupant with common authority over the premises or effects sought to be inspected may voluntarily
consent to a lawful search. However, a co-occupant’s consent is insufficient basis for a reasonable search if a
potential defendant with self-interest in objecting is physically present and objects. Georgia v. Randolph, 547 U.S.
103, 121 (2006). In contrast, a potentially objecting occupant who is nearby but not part of the conversation need
not be considered so long as he or she has not been removed by police for the purpose of avoiding a possible
objection. Id. at 121-22. Recently, in Fernandez v. California, 571 U.S. ___, ___ (2014), the Supreme Court
underscored the limited scope of Randolph, holding “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.” Since it would be inconsistent
with the narrow exception in Randolph, the Supreme Court also declined to place a durational limit on an
objection’s effectiveness. Id. at ___. In New Jersey, no prior cases have considered the constitutionality of a search
as to a third occupant against whom the government wished to use the seized evidence when the search was
conducted with consent of one co-occupant subject to the contemporaneous objection of another. (pp. 16-23)
4. Here, the focus of the challenge is whether Karen’s consent was overridden by Marcus’s prior strenuously
expressed demands that the police leave the premises. The Court concludes that the rule announced in Randolph
does not render Karen’s consent invalid and the search unreasonable. The Randolph holding is very narrow and
emphasizes that a search predicated on the consent of one occupant over the objection of another renders the
warrantless search constitutionally infirm only as to the objecting occupant. Thus, the search here is not
unreasonable as to defendant even in the face of Marcus’s demands. Moreover, there was no suggestion that Marcus
renewed his objection after leaving the house, and the record likewise provides no support for a conclusion that the
police engineered the departures of Marcus or defendant in order to prevent them from objecting to the warrantless
search of defendant’s room. In fact, the police had probable cause to arrest defendant for the earlier shooting and to
detain Marcus once he left the house. Any doubt that the police did not comport with the limited holding in
Randolph is resolved by Fernandez, supra, which places an occupant who is absent due to a lawful detention or
arrest in the same position as any other absent occupant. 571 U.S. at ___. Since Marcus’s lawful removal nullified
his earlier objection, Karen had full authority to consent to the search. The Court also recognizes that the
circumstances here were infused with exigency since the home was in close proximity to other residences and Karen
was inside with three small children and a loaded gun. The record attests to a reasonable police response, with no
suggestion that any occupant’s absence was contrived to avoid a potential objection to the search. Karen provided
knowing and voluntary consent, rendering the warrantless search reasonable under the circumstances of this appeal.
(pp. 23-27)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and PATTERSON; and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-37 September Term 2012
071262
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL W. LAMB,
Defendant-Appellant.
Argued October 22, 2013 – Decided May 19, 2014
On certification to the Superior Court,
Appellate Division.
Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Frank J. Ducoat, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
This appeal involves the validity of a warrantless consent
search of a house. An investigation of a reported shooting in
another part of town led Pennsville police to the house in which
police knew defendant Michael W. Lamb had resided at one time.
When police arrived, defendant’s stepfather emphatically
1
informed police that they were not welcome on his property or in
his house.
While defendant’s stepfather informed police that they
could not enter his home, defendant’s girlfriend appeared at the
door and left the house. She supplied information to police
that provided probable cause for defendant’s arrest and
confirmed his presence in the house.
Later, defendant’s stepfather agreed to leave the house.
Soon thereafter, defendant left the house at the insistence of
his mother. She remained in the house with three children
between the ages of eight months and nine years and a loaded
gun.
Defendant’s mother permitted police officers to enter the
house and agreed to a search of the room where her son and his
girlfriend were staying. Police located a loaded handgun and
ammunition similar to the equipment used in the earlier
shooting.
We conclude that the consent to search provided by
defendant’s mother was knowing, voluntary, and valid. The
absence of defendant and his stepfather from the home permitted
defendant’s mother to provide or withhold consent. Fernandez v.
California, 571 U.S. ___, 134 S. Ct. 1126, 188 L. Ed. 2d 25
(2014). Furthermore, the initial opposition expressed by
2
defendant’s stepfather was no longer effective once he was not
physically present in his home.
Under the totality of the circumstances, we hold that the
warrantless search of defendant’s bedroom was solidly anchored
to the knowing and voluntary consent to search given by
defendant’s mother.
I.
We derive the facts from the evidentiary hearing conducted
by the motion court in response to defendant’s motion to
suppress the handgun seized following a consent search of his
mother and stepfather’s home authorized by his mother.
On July 3, 2009, Pennsville police received a report of a
discharge of a firearm on a city street in the Deepwater section
of town. The victims, a man and a woman, told police that they
encountered defendant, first on foot and then as a passenger in
a car. Defendant initially approached the victims and inquired
about the location of a particular individual. The male victim
advised defendant that he did not know the man. Defendant left
but returned moments later in a car driven by his girlfriend,
Jennifer Garcia. She stopped the car alongside the male victim,
and defendant, who was seated in the front passenger seat,
resumed his questioning about the whereabouts of the man he was
trying to locate. During this conversation, defendant
3
identified himself as Michael Lamb and told the victims he was
from Quinton, a town about ten miles from Pennsville.
The male victim reiterated his earlier statement that he
did not know the man whom defendant sought, but the female
victim started to volunteer some information. The male victim
silenced her, and defendant and the male victim continued to
discuss whether the male victim had any knowledge of the other
person. Then, defendant produced a handgun. The male victim
reached through the open window, grabbed defendant’s arm, and
pushed the gun toward the floor of the car. Garcia started to
drive from the scene and the male victim removed his hand from
defendant’s arm. As the car pulled away, the male victim saw
defendant lean out of the front passenger seat window and point
the gun in his direction. As the male and female victims ran
into a yard, the male victim saw a flash from the muzzle of the
gun and heard a discharge. Police later found a .45 caliber
spent shell casing close to the curb where defendant had
discharged the gun.
A police database search revealed that defendant had lived
with his parents at Lot 18 of the South Bridge Community Mobile
Home Park in Pennsville. In an attempt to locate defendant,
Pennsville Township Police Detective Greg Acton drove through
the community in an unmarked car and observed two cars at Lot 18
that matched the descriptions provided by the victims. After
4
securing the area, Detective Acton drove to the residence and
observed a middle-aged white male standing on a step. As the
detective exited his car, the male, later identified as Steven
Marcus, defendant’s stepfather, immediately entered the house.
Acton and another officer approached the door and knocked.
When Acton received no response, he knocked harder. Through the
unopened door, the detective heard a male voice yell that the
police should leave the property. The detective banged on the
door again, and Marcus opened the door. The detective told
Marcus that he was looking for defendant. Marcus stated that
defendant was not there and emphatically demanded that the
police leave the premises.
The detective observed, standing behind Marcus, a young
woman, who matched the description of the driver of the car
carrying defendant and who was later identified as Garcia. The
officer asked whether the young woman was defendant’s girlfriend
and if defendant was in the house. As Garcia approached the
door, the detective took her arm and removed her from the house.
All the while, Marcus was yelling for the police to get out of
the house and leave his property.
Garcia told the officer that defendant was in the house and
hiding under a bed in the room they occupied when they visited
defendant’s mother and stepfather. She also confirmed that she
had driven defendant to the Deepwater section of Pennsville,
5
that a conversation occurred between defendant and another male
that escalated into a verbal argument, and that she saw the gun
and observed defendant fire a shot into the air. Garcia told
the detective that she did not know whether defendant remained
in possession of the gun. Detective Acton also learned that, in
addition to defendant, two adults and three children between the
ages of eight months and nine years were in the house.
Detective Acton ordered other officers to evacuate nearby
residences and requested assistance from the police department
and the county prosecutor. Once the area was secure, police
placed a telephone call to the residence to persuade either
defendant or Marcus to leave the residence. After approximately
ten to fifteen minutes, Marcus left the residence. He was
placed in custody and removed to a safe area. Police continued
to speak with Karen Marcus, the mother of defendant and wife of
Marcus. Approximately ten minutes later, at the insistence of
his mother, defendant left the house and was arrested. Officers
from the county prosecutor’s office and Detective Acton went to
the entrance of the house to speak with Karen.1
Karen later admitted that she signed a consent-to-search
form but insisted that she did not do so voluntarily. She
testified that the police informed her that they would obtain a
search warrant if she refused to consent to a search. Karen
1
We refer to Karen Marcus by her first name to avoid confusion.
6
also related that the police threatened that the entire family
might spend the night in jail, if she refused to consent to the
search. Karen testified that one of her daughters was very
distraught, that she did not want her new home torn apart in a
search, and that she was very upset that her son’s behavior had
brought the police to her home. Therefore, she signed the form
without reading it and unwillingly guided the officers to the
room used by defendant when he stayed at the house. Police
found a Taurus .45 caliber semi-automatic handgun with five
rounds in the chamber and an extra magazine in a box in a closet
of the bedroom.
II.
A.
Defendant was indicted on two counts of attempted murder,
N.J.S.A. 2C:5-1, 2C:11-3(a); four counts of aggravated assault,
N.J.S.A. 2C:12-1(b)(1); one count of unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b); and one count of possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).
Defendant filed a motion to suppress the evidence seized
from his bedroom. Defendant argued that his mother’s will had
been overborne by police. He emphasized that she was frightened
and believed she had no choice but to consent to a search of her
house. Under the circumstances, defendant insisted that her
consent to search was not voluntary.
7
The State argued that the warrantless search of the Marcus
residence was reasonable because Karen consented to the search.
The State emphasized that Karen read the consent-to-search form,
knew she could refuse consent, and knew that the search would
focus initially on the room recently occupied by her son. The
State acknowledged that police informed Karen that they would
obtain a search warrant if she refused consent, but argued that
providing accurate information does not undermine an otherwise
knowing and voluntary consent to search.
The motion court denied the motion to suppress, finding
that Karen acted voluntarily and without coercion. The court
generally credited and adopted Detective Acton’s version of the
events. The motion court noted that Karen admitted that the
police advised her she could refuse and withdraw consent. The
trial court further found that there was probable cause to
search the premises, and therefore, it was not improper for the
police to suggest that they would obtain a search warrant if
Karen refused consent. The motion court acknowledged that Karen
was undoubtedly upset and frightened and noted her admission
that she yelled at her son for bringing trouble and “stuff” into
her house. Yet, the motion court found that her fear about the
presence of a gun and police officers in her house did not
overwhelm her ability to consent to a search of the house.
8
The motion court also held that the police had no
obligation to leave the premises as directed by Marcus.
Furthermore, Marcus’s earlier refusal to permit entry into his
house did not nullify Karen’s later consent. Additionally, the
court mentioned that exigent circumstances justified the search,
although the State had not advanced this argument.
Following the denial of his motion to suppress, defendant
entered a conditional guilty plea to second-degree unlawful
possession of a handgun. Pursuant to the plea agreement,
defendant was sentenced to a five-year term of imprisonment
subject to a three-year period of parole ineligibility. The
remaining charges were dismissed.
B.
Defendant appealed the denial of the motion to suppress to
the Appellate Division, which affirmed the denial of the motion.
The panel found that Karen knowingly consented to a search of
her adult son’s bedroom because she was informed of her right to
refuse, read the consent form, and signed it. The appellate
panel also concluded that Karen’s consent to search was not
negated by her husband’s earlier refusal. The panel emphasized
that Marcus was not present when Karen consented to the search,
“his refusal [was] no longer contemporaneous, and there was no
finding that he was removed for the sake of avoiding his
9
objection” or that he would have continued to object by the time
Karen agreed to the search.
This Court granted defendant’s petition for certification
limited to the issue of whether consent by an occupant to search
premises is constitutionally effective against a third party
when an absent co-tenant has objected to the search. 213 N.J.
531 (2013).
III.
A.
Defendant contends that Karen’s consent to search after
Marcus refused to grant consent was invalid under Georgia v.
Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208
(2006). Defendant maintains that there is a distinction between
an objecting tenant who has been validly arrested and taken from
the scene, and a tenant who has been taken and remains only a
short distance away. Defendant urges this Court to reject a
literal reading of the “physically present and objecting”
requirements of Randolph, arguing that an objector’s absence
from the doorstep of his home should not necessarily preclude
the objector from exercising his or her right to refuse consent,
especially when the co-tenant remains in close proximity to his
or her house. Defendant further contends that a co-tenant
without superior authority over shared property should not be
10
permitted to overcome an objecting co-tenant’s right to refuse
consent.
Defendant further argues that the exception to the physical
presence rule articulated in Randolph should not be limited to
pretextual removals of an objector because it may be difficult
to determine why a suspect was removed from the scene by the
police. Defendant argues that, in this case, the appellate
panel merely speculated that Marcus would have changed his
refusal to consent after the police removed him from the
premises.
Finally, defendant urges this Court to reject the language
in Randolph implying that a third party has no standing to
contest a search when he is not the objector to the search.
Defendant contends that this language is dicta, and runs afoul
of State v. Alston, 88 N.J. 211, 228-29 (1981) (granting
automatic standing to any person who “has a proprietary,
possessory or participatory interest in either the place
searched or the property seized”). Defendant maintains that the
automatic standing doctrine is firmly established and grants him
standing to challenge the search of his parents’ home in this
State. Accordingly, the portion of the Randolph rule which
indicates that standing is limited to the objecting co-tenant
was based upon established federal law which has not been
followed under our State Constitution.
11
B.
The State maintains that a co-tenant’s consent is valid
against an absent and objecting co-tenant because the absent co-
tenant “assumed the risk by living with others [who] . . . could
grant police consent to enter and search.” United States v.
Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).
Furthermore, the United States Supreme Court’s decision in
Randolph established that a co-tenant must be physically present
in order for his or her refusal to consent to be valid.
The State maintains that the Randolph rule should be
limited to a common-authority tenant who is physically present
and contesting the search’s validity. Accordingly, it should
not apply to cases where the evidence obtained over disputed
consent is used against a non-objecting co-inhabitant. The
State contends that a rule limiting the constitutional
effectiveness of one’s objection to only the objector best
protects the diverging interests that are at stake in cases like
the one before the Court. The State further contends that a
different result would negate the validly accorded consent of a
co-tenant to a search and result in police uncertainty about
their authority to search.
Further, the State contends that Marcus’s statements that
police could not come into his home and should get off his
property are irrelevant under Randolph because the police never
12
requested his consent to search. The State also emphasizes that
no evidence exists to support the suggestion that police removed
Marcus or defendant for the purpose of thwarting denial of
consent. Moreover, forty-five minutes elapsed between Marcus’s
statements and Karen’s consent, thus undermining the contention
that Marcus’s statements should be considered an “immediate
challenge” to Karen’s consent.
The State argues that Marcus’s removal from the scene was
proper, and his initial objection lost its force once he was
validly arrested and detained. Another co-tenant may later
consent to a search of a shared premises because social custom
does not vest the objection with perpetual effectiveness.
Finally, the State contends that, even in light of Marcus’s
objection, the police acted reasonably because there was
probable cause to believe a loaded firearm was inside the
trailer where Karen and three young children were present. The
State refers to Justice Breyer’s concurrence from Randolph,
stating that “the risk of an ongoing crime or other exigent
circumstance can make a critical difference” and would thus make
it reasonable for police to enter “even in the face of direct
objection by the other.” Randolph, supra, 547 U.S. at 126-27,
126 S. Ct. at 1530, 164 L. Ed. 2d at 229-30 (Breyer, J.,
concurring).
IV.
13
Appellate courts reviewing a grant or denial of a motion to
suppress must uphold the factual findings underlying the trial
court’s decision so long as those findings are supported by
sufficient credible evidence in the record. State v. Elders,
192 N.J. 224, 243 (2007). We accord deference to those factual
findings because they “are substantially influenced by [an]
opportunity to hear and see the witnesses and to have the ‘feel’
of the case, which a reviewing court cannot enjoy.” Id. at 244
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Thus,
appellate courts should reverse only when the trial court’s
determination is “so clearly mistaken ‘that the interests of
justice demand intervention and correction.’” Ibid.
A trial court’s interpretation of the law, however, and the
consequences that flow from established facts are not entitled
to any special deference. State v. K.W., 214 N.J. 499, 507
(2013). Therefore, a trial court’s legal conclusions are
reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010).
Here, defendant accepts the facts as found by the trial court
but urges that the governing law dictates that Karen’s consent
did not permit the warrantless search of his bedroom.
A.
New Jersey has retained the automatic standing rule of
Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d
14
697 (1960), overruled by United States v. Salvucci, 448 U.S. 83,
100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Under the automatic
standing rule, virtually all defendants have standing to contest
a search or seizure by police where they have either “a
proprietary, possessory or participatory interest in either the
place searched or the property seized,” or if “possession of the
seized evidence at the time of the contested search is an
essential element of guilt.” Alston, supra, 88 N.J. at 228. In
this way, our courts have construed the New Jersey Constitution
as affording New Jersey citizens greater protection against
unreasonable searches and seizures than accorded under the
United States Constitution. State v. Johnson, 193 N.J. 528, 541
(2008).
The conclusion that a defendant has standing to challenge a
search on state constitutional grounds is independent of and
unrelated to whether that defendant has a reasonable expectation
of privacy in the place searched or item seized. Alston, supra,
88 N.J. at 225-27; see State v. De La Paz, 337 N.J. Super. 181,
193 (App. Div.) (holding that absence of evidence at suppression
hearing regarding defendant’s status and his expectation of
privacy in place searched does not preclude determination of
whether defendant’s state constitutional rights were violated by
warrantless search), certif. denied, 168 N.J. 295 (2001). The
rule’s purpose is to avoid the need to sacrifice a defendant’s
15
Fifth Amendment rights and admit to criminal activity in order
to assert his Fourth Amendment rights to challenge the search or
seizure. Johnson, supra, 193 N.J. at 551.
Here, defendant clearly had a possessory interest in the
property seized. Alston, supra, 88 N.J. at 228-29. Possession
of the handgun is an essential element of several offenses faced
by defendant. Therefore, under New Jersey law, defendant has
automatic standing to challenge the search and seizure of the
firearm and ammunition.
B.
Both the United States Constitution and the New Jersey
Constitution guarantee the right of people to be free of
unreasonable searches and seizures in their homes. U.S. Const.
amend. IV; N.J. Const. art. I, ¶ 7. “Indeed, ‘physical entry of
the home is the chief evil against which the wording of the
Fourth Amendment is directed.’” State v. Vargas, 213 N.J. 301,
313 (2013) (quoting United States v. U.S. Dist. Court, 407 U.S.
297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)).
Thus, “our jurisprudence expresses a clear preference for police
officers to secure a warrant before entering and searching a
home.” State v. Brown, 216 N.J. 508, 527 (2014). Warrantless
searches are presumptively invalid. Ibid.; State v. Frankel,
179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108,
160 L. Ed. 2d 128 (2004), overruled in part by State v. Edmunds,
16
211 N.J. 117 (2012). When a defendant challenges a warrantless
search of a home, the State bears the burden of proving by a
preponderance of the evidence that the search falls within one
of the recognized exceptions to the warrant requirement. Brown,
supra, 216 N.J. at 527.
Federal and New Jersey courts recognize the consent to
search exception to the warrant requirement. 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). The Fourth and Fourteenth Amendments of the United
States Constitution require that consent must be voluntarily
given and not the result of duress or coercion, express or
implied. Schneckloth, supra, 412 U.S. at 248, 93 S. Ct. at
2059, 36 L. Ed. 2d at 875; Domicz, supra, 188 N.J. at 307. To
determine whether a person voluntarily consented to a search,
the focus of the analysis is “whether a person has knowingly
waived [his or her] right to refuse to consent to the search.”
Domicz, supra, 188 N.J. at 308; see State v. Johnson, 68 N.J.
348, 353-54 (1975) (establishing standard of voluntary consent
under state constitution “as knowing and intelligent waiver,
which includes knowledge of right to refuse consent”). The
State has the burden of proving consent was given freely and
voluntarily. Schneckloth, supra, 412 U.S. at 248, 93 S. Ct. at
2059, 36 L. Ed. 2d at 875; Elders, supra, 192 N.J. at 246.
17
A co-habitant who possesses common authority over or has a
sufficient relationship to the premises or effects sought to be
inspected may voluntarily consent to a lawful search. Matlock,
supra, 415 U.S. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 250.
In Matlock, the defendant was arrested outside of his home. Id.
at 166, 94 S. Ct. at 991, 39 L. Ed. 2d at 247. Without asking
the defendant, police knocked on the door and asked the
defendant’s wife for consent to search the home. Ibid. The
wife consented, and the defendant sought to suppress the
evidence recovered during the search. Id. at 166-69, 94 S.
Ct. 991-92, 39 L. Ed. 2d 247-48.
In explaining its rationale supporting the effectiveness of
the wife’s consent, the United States Supreme Court stated:
The authority which justifies the third-
party consent does not rest upon the law of
property, with its attendant historical and
legal refinements but rests rather on mutual
use of the property by persons generally
having joint access or control for most
purposes, so that it is reasonable to
recognize that any of the co-inhabitants has
the right to permit the inspection in his
own right and that the others have assumed
the risk that one of their number might
permit the common area to be searched.
[Id. at 171 n.7, 94 S. Ct. at 993 n.7, 39 L.
Ed. 2d at 250 n.7 (citations omitted).]
The Court concluded that the defendant’s wife could have
had actual authority to consent to a search but remanded to
determine if the government presented sufficient evidence
18
establishing the wife’s mutual control and use of the shared
space. Id. at 177, 94 S. Ct. at 996-97, 39 L. Ed. 2d at 253.
In Randolph, supra, the United States Supreme Court
addressed whether the consent to search of one co-tenant
overrides the objection of another physically present co-tenant.
547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208. The Court
held that a warrantless search of a shared dwelling for evidence
against a co-inhabitant over the express refusal of consent by a
physically present resident cannot be justified as reasonable as
to him on the basis of consent given to the police by another
resident. Id. at 120, 126 S. Ct. at 1526, 164 L. Ed. 2d at
226.
The Court emphasized that “[t]he constant element in
assessing . . . reasonableness in the consent cases . . . is the
great significance given to widely shared social expectations.”
Id. at 111, 126 S. Ct. at 1521, 164 L. Ed. 2d at 220. The
reasonableness of a search is “a function of commonly held
understanding about the authority that co-inhabitants may
exercise in ways that affect each other’s interest.” Ibid.
However, “there is no common understanding that one co-tenant
generally has a right or authority to prevail over the express
wishes of another, whether the issue is the color of the
curtains or invitations to outsiders.” Id. at 114, 126 S. Ct.
at 1523, 164 L. Ed. 2d at 222.
19
The Supreme Court, however, distinguished between an
objector who is physically present and a potential objector who
is nearby but not part of the conversation. Id. at 121, 126 S.
Ct. at 1527, 164 L. Ed. 2d at 226. It stated that “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.” Ibid. The majority noted that the distinction was
formalistic, ibid., but stressed that
[s]o 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, there
is practical value in the simple clarity of
complementary rules, one recognizing the co-
tenant’s permission when there is no fellow
occupant on hand, the other according
dispositive weight to the fellow occupant’s
contrary indication when he expresses it.
[Id. at 121-22, 126 S. Ct. at 1527, 164 L.
Ed. 2d at 226-27.]
Recently, the Supreme Court underscored the limited scope
of Randolph in Fernandez, supra, 571 U.S. ___, 134 S. Ct. 1126,
188 L. Ed. 2d 25, by refusing to extend its ruling in Randolph
to a situation in which a co-occupant consented to a search of
the home she shared with the defendant after his arrest and
removal from the scene. In Fernandez, the defendant was charged
with various offenses, including robbery, and moved to suppress
20
the evidence seized from the search based on his prior refusal
to consent to a search of the apartment. Id. at ___, 134 S. Ct.
at 1131, 188 L. Ed. 2d at 32. In affirming the denial of his
motion to suppress, the Court reiterated that the consent of one
resident of jointly occupied premises is generally sufficient to
justify a warrantless search. Id. at ___, 134 S. Ct. at 1133,
188 L. Ed. 2d at 34. The Court characterized the rule in
Randolph as “a narrow exception,” and emphasized that the rule
is premised on the physical presence of the objecting occupant.
Ibid.
In Fernandez, the police arrived at the residence in
pursuit of the defendant, who had been identified as a
participant in an armed robbery. Id. at ___, 134 S. Ct. at
1130, 188 L. Ed. 2d at 31. As they entered the building, police
heard screams coming from an apartment. Ibid. A woman showing
signs of recent injury answered a knock by police. Ibid. The
defendant appeared at the door and refused consent for police
entry to conduct a protective sweep. Ibid. Suspecting the
defendant of assaulting the woman, police arrested the defendant
and removed him from the apartment. Ibid. Approximately an
hour later, police returned to the apartment, told the woman
that the defendant had been arrested, and asked for and received
oral and written consent to search the apartment. Ibid. The
search uncovered gang paraphernalia, a knife, clothing matching
21
the description of the robbery victim, and ammunition. Id. at
___, 134 S. Ct. at 1130-31, 188 L. Ed. 2d at 31.
The Supreme Court characterized the discussion in Randolph
of the effect of removal of the objecting occupant by police as
dictum. Id. at ___, 134 S. Ct. at 1134, 188 L. Ed. 2d at 35.
The Supreme Court explained that this discussion “is best
understood . . . to refer to situations in which the removal of
the potential objector is not objectively reasonable,” and held
“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.” Ibid.
The Court also declined to place any limits on how long an
objection may be effective. Id. at ___, 134 S. Ct. at 1135, 188
L. Ed. 2d at 35-36. Indeed, the Court noted that a durational
limit divorced from the objecting occupant’s presence is not
consistent with the narrow exception crafted by Randolph. Ibid.
In New Jersey, as under federal law, consent may be
obtained from a third party so long as the consenting party has
the authority to bind the other party. State v. Suazo, 133 N.J.
315, 320 (1993); State v. Crumb, 307 N.J. Super. 204, 242 (App.
Div. 1997), certif. denied, 153 N.J. 215 (1998). In order to
determine whether valid consent to search an area was given by a
third party, the State must prove the third party possessed
common authority over or other sufficient relationship to the
22
premises or the effects sought to be inspected. State v.
Douglas, 204 N.J. Super. 265, 276 (App. Div.) (quoting Matlock,
supra, 415 U.S. at 168-70, 94 S. Ct. at 992-93, 39 L. Ed. 2d at
248-50), certif. denied, 102 N.J. 378 (1985); see also Illinois
v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801, 111 L.
Ed. 2d 148, 161 (1990) (holding police had reasonable basis to
believe that former girlfriend and roommate, who invited police
to search defendant’s apartment and produced key to premises,
had control of premises to authorize entry and search).
Further, a search may still be effective even where the occupant
requests that no consent be given by the co-occupant. Douglas,
supra, 204 N.J. Super. at 277 (citing 2 W. LaFave, Search and
Seizure § 8.3, 710-11 (1978)). No New Jersey cases have
considered the constitutionality of a search as to a third
tenant against whom the government wished to use evidence seized
after a search with consent of one co-tenant subject to the
contemporaneous objection of another.
V.
We acknowledge that defendant has standing to challenge the
consent to search granted by his mother. The record reveals
that he stayed on an occasional but recurring basis in the home
of his mother and stepfather, and occupied the same bedroom in
the house whenever he visited.
23
The focus of this appeal is whether the strenuously
expressed statements by defendant’s stepfather that the police
should remove themselves immediately from the premises overrides
the later consent given by defendant’s mother. We conclude the
rule announced in Randolph, supra, does not render the consent
given by defendant’s mother nugatory and the search
unreasonable.
First, Randolph is a very narrow holding. The Supreme
Court recognized that it was drawing a fine and formal line but
justified the ruling as providing “practical value in the simple
clarity of complementary rules, one recognizing the co-tenant’s
permission when there is no fellow occupant on hand, the other
according dispositive weight to the fellow occupant’s contrary
indication when he expresses it.” 547 U.S. at 121, 126 S. Ct.
at 1526, 164 L. Ed. 2d at 226-27.
The Supreme Court also emphasized that a search predicated
on the consent of one co-tenant over the objection of another
co-tenant renders the warrantless search constitutionally infirm
as to the objecting co-tenant. Id. at 120, 126 S. Ct. at 526,
164 L. Ed. 2d at 225-26. Thus, even in the face of Marcus’s
demand that the police leave his property, Karen’s consent does
not render the search constitutionally unreasonable as to
defendant. We also note that neither Detective Acton nor Karen
testified that Marcus renewed his objection to the police
24
presence at the time he agreed to leave the house almost an hour
after his initial objections.
In addition, despite defendant’s authority to consent or
refuse consent to a warrantless search of the house, the record
clearly reveals that defendant agreed to leave the house after
protracted telephonic discussions between the police and Marcus
and then Karen. The record provides no support that defendant’s
removal and Marcus’s earlier exit from the house were designed
to prevent either occupant from objecting to the warrantless
search of the room defendant occupied over this holiday weekend.
Indeed, the police had probable cause to arrest defendant for
the earlier shooting and to detain Marcus once he left the
house.
Finally, any doubt that police conduct did not comport with
the limited holding in Randolph is resolved by Fernandez. As
recognized in Fernandez, supra, an occupant who is absent due to
a lawful detention or arrest is in the same position as an
occupant who is absent for any reason. 571 U.S. at ___, 134 S.
Ct. at 1134, 188 L. Ed. 2d at 35. Thus, we are not confronted
with the exception to the fine and formal rule announced in
Randolph, supra, of police removal of an objecting co-tenant to
avoid a possible refusal. 547 U.S. at 121, 126 S. Ct. at 121-
22, 164 L. Ed. 2d at 227. Moreover, by virtue of his removal
from the immediate scene, Marcus’s earlier objection to police
25
was no longer effective, Fernandez, supra, 571 U.S. at ___, 134
S. Ct. at 1135-36, 164 L. Ed. 2d at 35-37, and Karen had full
authority to consent to a search of her home, id. at ___, 134 S.
Ct. at 1137, 164 L. Ed. 2d at 38.
Finally, this Court must recognize, as did the motion court
and the appellate panel, that the circumstances surrounding the
consent obtained from Karen were infused with exigency. To be
sure, the State did not rely on exigency to support the validity
of the consent search of the Marcus house. Nevertheless, once
police located defendant and received information from his
girlfriend that corroborated the earlier report of a shooting
and that the gun may have been in the house, the police were
faced with a critical situation. The Marcus house was small, no
more than 880 square feet, and located in close proximity to
other dwellings. Once defendant’s girlfriend, Marcus, and
finally defendant left the dwelling, Karen remained inside with
three very young children in close proximity to a loaded gun.
See De La Paz, supra, 337 N.J. Super. at 195-96 (identifying
several factors that indicate exigent situation justifying
warrantless entry).2
2
We also conclude that the motion judge’s finding that Karen’s
consent to search her house was knowing and voluntary is
consistent with governing law. The entire incident, lasting
from 11:30 p.m. on July 3 to 2:30 a.m. on July 4, was
undoubtedly stressful. Police had arrived at her home seeking
her son, who dove under a bed to hide from police. Karen was
26
Reasonableness is the touchstone of the Fourth Amendment
analysis. Rodriguez, supra, 497 U.S. at 185, 110 S. Ct. at
2800, 111 L. Ed. 2d at 159. The record in this appeal attests
to a reasonable police response to a violent episode calculated
to obtain the expeditious arrest of the shooter and seizure of a
potentially loaded weapon. There is no suggestion that the
police contrived the absence of any occupant to frustrate a
physically present occupant’s ability to consent to a search of
the home. The police procured from the remaining adult occupant
a knowing and voluntary consent to search the residence in which
the suspected shooter was staying and the warrantless search was
reasonable under the circumstances of this appeal.
VI.
The judgment of the Appellate Division is, therefore,
affirmed.
clearly fearful that police would rip apart her new home, and
she was also extremely annoyed that her son had brought a gun
into her home. She also had to cope with three young children
who were emotionally distraught by the commotion caused by the
arrival of the police. Nevertheless, the record clearly
supports the determination of the Appellate Division that the
police requested her consent only after they had been in
communication with her for a significant period of time. Her
will had not been overborne, her decision was not rushed, and
she knew she could refuse consent. In fact, the record reveals
that the police communicated with Karen in a deliberate but firm
manner that seemed to be calculated to permit a reasonable and
timely resolution to a very tense and possibly explosive
situation.
27
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and
PATTERSON, and JUDGE RODRÍGUEZ (temporarily assigned) join in
JUDGE CUFF’s opinion.
28
SUPREME COURT OF NEW JERSEY
NO. A-37 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL W. LAMB,
Defendant-Appellant.
DECIDED May 19, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1