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February 14, 2017
Constitutionally protected privacy interests are enshrined in the 4th Amendment protection against warrantless searches and seizures as well as Article I, Paragraph 7 of the New Jersey State Constitution. One key exception to the warrant requirement, as well as the requirement for probable cause precedent to the execution of a search, is voluntary consent knowingly waived by a party with authority to search. For a person to be considered a valid third party that can consent to a search of property he or she must meet a few requirements:
· The area being searched is shared with the suspect and the third party.
· The third party has control over the shared area- i.e., they have a key to such areas or their name is listed on the lease.
· The consent of the third party is given willingly.
A common issue in controlled dangerous substance cases is consent to search given by a third party to the police to search an area that the third party doesn’t have ownership over. This situation arises frequently in the following ways:
· Driver consenting to search of a passenger’s possessions in his or her car.
· Landlord granting consent to search a tenant’s property.
· A significant other granting consent to search a partner’s property.
If a police officer pulls over a car with multiple passengers in it, there is a question to whether or not the driver can consent to search of passenger’s possessions in the car. In New Jersey, the answer is no. Per the New Jersey Supreme Court, drivers apparent authority to permit a search does not extend to search the personal belongings of passenger, as seen in State vs Suazo 133 N.J 315. When Suazo and the defendant were pulled over, the driver signed a consent-to-search form to allow the trooper to conduct a “complete search of the vehicle”. When a bag was found in the trunk of the car that was claimed by the defendant Sauzo, a passenger, the state trooper searched the bag and found four kilos of cocaine. Suazo, the driver and owner of the car, gave consent to search the vehicle, but the defendant as a passenger did not give consent to search the bag. The court held that the officer did not receive proper consent to search the bag, so the evidence was suppressed.
As with drivers and passengers, similarly landlords are not able to consent to a search of their tenant’s property. In State vs. Scrotsky 39 N.J. 410, a landlord’s personal apartment, located in the building owned by the landlord, was burglarized. The landlord believed that a resident in her building, Scrotsky, was the burglar. The landlord and the police then entered Scrotsky’s apartment when he was not home and found the landlord’s stolen personal belongings. Even though the landlord owned the apartment building where the search was executed, the New Jersey Supreme Court found that she had no right of entry to the apartment she was renting to Scrotsky. The court concluded that the evidence was obtained during an illegal search and seizure in violation of the Fourth Amendment of the United States Constitution.
If a significant other consents to a search, the consenting party must have a right of control or authority over the premises and possession to consent to the warrantless search. In State v. Earls 420 N.J. Super 583 (App. Div. 2011), the court held that defendant’s girlfriend had authority to consent to a search of a storage unit, even though the girlfriend did not have a key. The search was permitted because the court found the girlfriend had lawful authority over the area to be searched, noting that the girlfriends name was on the lease and she stored clothes in the unit.
Earls considers the three rationales used by courts to justify third party searches:
· Implied agency or a relationship between someone like a kid and his parents, which would support consent.
· The status relationship between the parties.
· Possession and control. If the consenting party denies a property interest at time of the search and does not have an appearance of control at time consent is given, the consent is invalid. State v. Lee 245 N.J. Super. 441 (App. Div. 1991).
In addition to the issue of whether or not these third parties even possess the authority to consent, the other concern is limitations to the scope of their search.
Government agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search. In State vs Leslie 338 N.J. Super 269, a police officer pulled over the defendant and searched his vehicle. The defendant consented to a search of the car, and not the trunk specifically. The officer proceeded to unlawfully search the trunk of the car and found over five pounds of marijuana. The defendant was arrested for possession with intent to distribute in violation of N.J.S.A. 2C: 35-5a(1) and N.J.S.A. 2C:35-5b(10)(b). This case stands for the proposition of express and implied limitations on consent. That the nature of the item sought may in itself dictate a limit to the search. Put more bluntly it would be unreasonable “to search desk drawers upon receiving consent to search for a stolen grand piano.” Byrnes, New Jersey Arrest, Search and Seizure, § 16:4 (Gann 1996).
The attorneys at Lubiner, Schmidt & Palumbo have extensive experience in search and seizure cases dealing with controlled dangerous substance/drugs and weapons charges as well as a host of other issues. Call for a consultation to discuss the merits of your case and different potential options to consider. Please call 1-908-709-0500 to speak with one of our associates.