(Photo: Diego M. Radzinschi / NLJ)
The New Jersey Supreme Court on Monday used two cases to clarify when the police can search a premises without a search warrant when at least one tenant consents but another objects.
In a unanimous ruling in State v. Lamb, the court said a warrantless search conducted over the vociferous objection of one tenant does not render the search infirm as to a third party—in this case, a man hiding out after allegedly firing shots at other people—when the objecting tenant leaves the residence.
But in a 5-1 ruling in State v. Coles, the majority declared invalid the search of a padlocked room normally occupied by a suspected robber in a house owned by his aunt who, after repeatedly being asked for permission, consented to the search that uncovered illegal weapons while the suspect was being improperly detained nearby.
Judge Mary Cuff, writing for the court in Lamb, said the objections of the tenant, who was not a suspect, were “no longer effective once he was not physically present in his home.”
In Coles, Justice Jaynee LaVecchia wrote: “[T]he objective reasonableness of this asserted consent-based search founders on the unlawfulness of the police detention of defendant in the totality of these circumstances.”
Darren Gelber, the president of the Association of Criminal Defense Lawyers of New Jersey, said the two rulings need to be viewed separately because of the facts.
“Coles is a useful resource,” said Gelber, of Woodbridge’s Wilentz, Goldman & Spitzer. “It confirms, possibly for the first time, that the police can’t simply remove a suspect from the premises and rely on someone else” for permission to search.
Lamb is different, he said, because of the immediate report of shots being fired.
“It seems to have been an emergent and fluid situation where the police were confronted with information that children were inside and firearms were present,” Gelber said. “Rapidly unfolding events typically result in courts being very deferential.
“In Coles, there was no evidence of any emergency,” he said.
Defendant Byseem Coles, the robbery suspect, was arrested in Camden on May 19, 2009, and taken to his aunt’s home, where he was a paying tenant. He was held in a police car while officers asked his aunt for permission to search his room. She agreed and police found several shotguns, a rifle and a large quantity of ammunition.
After his suppression motion was denied, Coles pleaded guilty to a weapons charge and was sentenced to five years in prison. He did, however, retain his right to appeal.
LaVecchia said Coles’ rights were violated because he should not have been detained at the time of the search. The robbery victim, by that time, had been brought to the patrol car but could not identify Coles as the robber. At that point, LaVecchia said, the police no longer had a right to detain Coles and he should have been allowed to return to his residence, where he could have objected to any warrantless search.
“The interaction with defendant’s aunt cannot be disentangled from the unlawful detention of defendant in a patrol car parked a few houses down the street,” LaVecchia said. “[A] warrantless consent-based search is objectively unreasonable and unconstitutional when premised on defendant’s illegal detention.”
Justice Anne Patterson dissented, saying the search was justified since Coles was not present to object when the search occurred.
Coles’ attorney, Assistant Deputy Public Defender Daniel Gautieri, said the court did not have to conduct an in-depth review of the constitutionality of the search because of the illegality of Coles’ detention.
The only thing the police should have been allowed to ask the aunt was whether she could identify her nephew, who had not been carrying any ID, Gautieri said.
“There were a lot of issues the court didn’t have to reach because of the illegal detention,” he said.
The case of defendant Michael Lamb involved a search of a home that occurred after he allegedly shot at two people on a city street on July 3, 2009, and fled.
The police eventually found Lamb’s car outside a trailer in Pennsville, where he lived with his family. As the police approached the trailer, Lamb’s stepfather, Steven Marcus, opened the door and shouted: “Get the fuck off my property. You’re not coming in. You don’t have a warrant.”
Eventually, Marcus was coaxed out of the trailer and was taken away from the scene. Lamb, who had been hiding under a bed, was persuaded to come out and was arrested. Lamb’s mother eventually consented to a search and the police found a handgun, with one round missing from the magazine, hidden inside a game box.
Lamb eventually pleaded guilty to a weapons charge and was sentenced to five years in prison. He also retained his right to appeal.
“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,” Cuff said.
Peter Aseltine, a spokesman for the Attorney General’s office, which represented the state in both appeals, said in a statement that the court properly followed U.S. Supreme Court precedent in Lamb.
“However, we disagree with the majority opinion in Coles,” he said. “We agree in Coles with Justice Patterson, who correctly recognized in her thoughtful dissent that the applicable federal case law does not preclude all third-party consent searches when the defendant is absent from the residence and is found to have been unlawfully detained.
“It only precludes those in which the police unconstitutionally remove the defendant from the residence to avoid his potential objection to a consent search,” Aseltine said.
Lamb’s attorney, Assistant Deputy Public Defender Jay Wilensky, was away from his office and could not be reached for comment.
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