This is another guest post by Jeffrey A. Shooman, my colleague at Lite DePalma Greenberg, LLC:
State v. Coles, 217 N.J. 467 (2014). Sergeant Zsakhiem James of the Camden Police Department responded to a report of robbery in Camden. According to James, he arrived at the scene within minutes and spotted defendant Byseem Coles, who matched the description James had been given of the robber, walking towards the officer. James detained defendant because he gave suspicious answers and appeared nervous and “fidgety.” James conducted a Terry stop and search but unearthed no weapons. Defendant was nevertheless placed in the backup unit that had arrived.
James asked defendant where he lived. Defendant responded with an address that was on the block he had been walking when James initially confronted him. Defendant could not produce identification, but told the officers that his aunt and cousin, with whom he lived, could identify him. At that point, the robbery victim arrived at the scene for a showup identification. The victim could not identify defendant’s face as being that of the robber’s because the robber had worn a mask. The victim said, though, that defendant’s black pants and grey hooded sweatshirt matched those of her assailant. The officers returned defendant to the police car.
James and another detective then walked to the address at which James claimed he lived. Thelma Coles answered the door. James told Thelma that the police had a young man in custody—Byseem Coles—who stated that he lived in the residence. James sought permission to enter Byseem’s room because he believed that Byseem had stopped home after committing the robbery. Thelma agreed to allow James to enter Byseem’s room. There was a padlock on the room and Thelma had a key to open it. James persisted in questioning Thelma and learned that she had slept in his room recently. James thus concluded that Thelma had authority to consent to a search of Byseem’s room. James searched the room and he found guns and ammunition.
A grand jury indicted defendant on myriad weapons charges. Defendant filed a motion to suppress, which the motion judge denied. The judge first rejected defendant’s argument that his detention was illegitimate, holding that James had ample basis, given defendant’s behavior, to conduct a Terry stop and search. Second, the judge found that Thelma had authority to consent to a search of Byseem’s bedroom. The judge reasoned that because Thelma had a key to the padlock to Byseem’s bedroom and because she occasionally slept in the room, Thelma and Byseem “share[d] control of the space.” Next, the judge held that Thelma’s consent was voluntary. Finally, the judge dispensed with the argument that the search exceeded the scope of Thelma’s authorization.
Defendant pleaded guilty to one weapons count, in exchange for dismissal of the other charges. He then appealed the denial of his motion to suppress. The Appellate Division reversed defendant’s conviction. Assessing the touchstone of the analysis—the overall reasonableness of the search— the panel held that the police ignored the very person with superior right to control the access to the room, the defendant, sitting in a police car six blocks away. The panel stated that the continued viability of the lawful detention of the defendant had evaporated when the robbery victim was unable to identify him conclusively as her assailant. Employing a totality-of-the-circumstances analysis, the panel concluded that the search was unreasonable. Accordingly, the panel reversed the suppression order and defendant’s conviction, and remanded for the entry of a suppression order.
The Supreme Court granted certification. In an opinion by Justice LaVecchia, the Court affirmed the judgment of the Appellate Division by a 5-1 vote.
The Court began by canvassing the most relevant federal precedents, Georgia v. Randolph, 547 U.S. 103 (2006), and Fernandez v. California, 571 U.S. __ (2014). In Randolph, the Court found that where policed are faced with a consenting occupant, but an also present and objecting co-occupant, it is objectively unreasonable for the police to rely on the consenting occupant. The Court drew a line in Randolph when an objecting co-occupant is present to override the consent of the other occupant. Justice LaVecchia recognized that this was a “fine line”: “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 inquiry, loses out.” Moreover, in Randolph, the Court specifically cautioned, given the line, the police cannot make unavailable a possible objecting occupant for the sake of avoiding objection, a point reiterated most recently in Fernandez.
Fernandez clarified that a co-occupant absent due to a lawful arrest stands in the shoes of an otherwise-absent co-occupant; in other words, per Randolph, the line drawn is that the objecting occupant must be present unless unlawfully detained. Justice LaVecchia extrapolated two points from Fernandez: (1) the objective-reasonableness test applies in situations such as this; and (2) “police responsibility for the unlawful detention or removal of a tenant who was prevented from being present at the scene to voice his . . . objection to the search is not equivalent to other neutral circumstances causing defendant’s absence.” The Court moreover concluded that this result was consonant with state precedent. Indeed, the Court ultimately grounded its holding in Article 1, Paragraph 7 of the New Jersey Constitution.
Justice LaVecchia first held that the initial stop of defendant pursuant to Terry was lawful. But the Court highlighted the tradeoff: by detaining an individual under Terry without probable cause, in this case for the purpose of conducting a showup identification, the exonerated individual is able to walk away. “In other words, the exonerated person is not to be subjected to further detention.” If there is continued detention, that detention transforms into a “de facto arrest,” which cannot be justified by the lower Terry bar of reasonable suspicion,” but must be justified by probable cause. And an arrest unsupported by probable cause is violative of both federal and state constitutions.
The Court held that when the police showed up at Thelma’s door, and had the exchange with her, she relinquished any belief that they did not know Byseem’s identity. The police “commenced a concerted course of action to secure defendant’s aunt’s permission to let them search his bedroom.” By this point, defendant had been exonerated, and his identity and residence had now been confirmed to the officers’ satisfaction, rendering unlawful his continued detention.
Given that defendant’s detention was unlawful at this point, and given the thread running through Randolph and Fernandez that a defendant’s absence from his residence cannot be manufactured by the police, Thelma’s third-party consent was thus manufactured and consequently invalid, as well. The Court ended by highlighting that defendant was entitled to walk away, six blocks away—yet, instead, the police, after having satisfied themselves of Byseem’s identify and residence, trained in on Thelma for her consent—a tactic the Court did not countenance.
Justice Patterson dissented. She read Fernandez as permitting this search. “[U]nless there is an objecting co-tenant present at the scene, or evidence that police removed a co-tenant from the residence to avoid a potential objection, the consent of a person with appropriate authority authorizes the warrantless search of a residence.” I think Justice Patterson’s reading of Fernandez is correct so far as it goes. There, Justice Alito emphasized that the Court in Randolph took “great pains” to limit its holding to where the objecting co-occupant was physically present. In Fernandez, the police removed the objecting tenant because they suspected he abused the co-occupant. He was lawfully arrested, and she later consented to a search of the premises.
But a distinguishing feature of Fernandez is that the police lawfully arrested the objecting tenant. There was no lawful arrest in this case, for the de facto arrest after the robbery victim could not identify the defendant occurred without probable cause—which is to say that there came a moment frozen in time in where defendant’s detention became unlawful. And importantly, the officers had knowledge that defendant’s continued detainment was unlawful, given their satisfaction that defendant was who he said he was and lived where he said he did. That fact meaningfully distinguishes Fernandez. Even if it did not, however, bear in mind that the majority premised its holding on the New Jersey Constitution. And the case law is clear in New Jersey that, in certain instances, the New Jersey Constitution affords defendants a more expansive right against unreasonable searches and seizures than the federal Constitution. In the view of the majority here, this was such an instance.
The Court decided a companion case that highlights the difference between the lawful detention, and thus permissible search in Fernandez, and the situation the Court dealt with in Coles. State v. Lamb, ___ N.J. ___ (2014). The Court’s decision in Lamb, authored by Judge Cuff, was unanimous. There, the absence of the objecting tenant due to a lawful arrest rendered the third party’s consent to the search of the home valid. The Court was guided by Fernandez, recognizing that “an occupant who is due absent to a lawful detention or arrest is in the same position as an occupant who is absent for any reason.”