Consent Searches Under New Jersey Law

February 1, 2017

In New Jersey, a request for consent to perform a search is a commonly used tactic by police, especially in drug/controlled dangerous substance and firearms cases. Receiving consent may permit law enforcement to search your personal property, car, even your home without a warrant. Per the 4^th Amendment of the US Constitution and  Article I, Paragraph 7 of the New Jersey Constitution, a warrant or probable cause is necessary for law enforcement to be able to execute a search. Consent searches are a way for law enforcement to get around the warrant requirement, but are problematic in several respects.  

Who is the appropriate party to grant consent to search the property? What is the scope of the consent? Can the police pressure someone into consenting? What is the potential to have any evidence obtained by the police, i.e. weapons, drugs, tossed out of court or suppressed if the consent given to search was not valid?

The Fourth Amendment requires that consent for a search must be voluntarily given and not the result of duress or coercion.  The New Jersey Supreme Court in State v King listed multiple factors in gauging whether the consent was voluntary such as:

1)     Whether the consent was given by an individual already arrested

2)     If consent was obtained despite a denial of guilt

3)     That consent was obtained only after the accused had refused initial requests for a search

4)     That consent was given where the subsequent search resulted in seizure of contraband which the accused must have known would be discovered

5)     Whether consent was given while the accused was handcuffed

In New Jersey, you must also have knowledge of the right to refuse consent of the search.  The burden of proof is on the State by clear and convincing evidence to show that consent was voluntary in the totality of the circumstances.  A waiver must be provided by law enforcement, i.e. a consent form, video or audio evidence, or a valid testimony to prove that the subject of the search gave consent. 

In State v. Speid defendants were charged with possession of drugs after a search was completed in their home.   The defendants sought to suppress the evidence found during the search, claiming that the police did not have consent or probable cause to enter the home.  Police had surveillance on the defendants’ house and had reason to believe that cocaine was being sold.  Four police officers then proceeded to enter the house without a warrant.  When the police officers were inside they announced that a search warrant was acquired, when in fact they did not have one.  As the search went on the police officers led the defendant to believe they had a warrant, but then proceeded to pressure her into signing a consent form and permit.  She was peppered with expletives and threatened unlawfully by the police to sign the consent form, which she eventually did.  After the defendant gave a testimony about how the search was given, the Court found that the police had no intention to obtain a warrant to search the home in the first place, and consent was only given after pressuring the defendant to do so.  State v. Speid illustrates that for valid consent to be given the subject of the search must do so willingly and must know of his or her right to refuse consent.

In obtaining consent, law enforcement can receive it from the subject of the search or from a third party that possesses common authority over the property.  In State v. Douglas, the defendant appealed from a jury conviction of armed robbery in violation of N.J.S.A. 2C:15-1, unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-1b and N.J.S.A.2C:58-4, and possession of a handgun for unlawful purposes in violation of N.J.S.A. 2C:39-4a.   After an armed robbery where two people were shot, police arrived at the defendant’s apartment.  The defendant’s mother, answered the door and police informed her that her son was a suspect in an armed robbery case.  The defendant and his mother proceeded to go to the police station where the victim ended up identifying the defendant in a photographic lineup.  Law enforcement proceeded to have Mrs. Douglas sign a consent form in order to search her apartment.  Once she gave consent, law enforcement was able to go back to the apartment and search the defendant’s room where they found a .22 caliber revolver.  In upholding the search the court emphasized that the State must show that the consent to search was obtained from a person who possessed a sufficient relationship with the property searched or the defendant, the third party possessed common authority over or other sufficient relationship to the premises or the effects sought to be inspected and that the third party had knowledge in the matter. In admitting the revolver into evidence the court noted the signed consent to search form, the form added that consent was voluntary, the small apartment that was being shared by Mrs. Douglas and her son, and the fact that the son did not even have a door separating his room from the remainder of the apartment showing a sufficient relationship between the Mrs. Douglas and the effects that the police wanted to search.

The third party issue addressed in State v Douglas can particularly problematic for college students New Jersey.  A roommate in a college dorm could potentially give consent to law enforcement to search the room and that can include your belongings as well.  But what is the scope of the search that police that can take? Does the search have limitations?

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.