State v. Byseem T. Coles (070653)

                                                     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. Byseem T. Coles (A-15-12) (070653)

Argued October 22, 2013 – Decided May 19, 2014

LaVECCHIA, J., writing for a majority of the Court.

      In this appeal, the Court considers the validity of a warrantless search, which was consented to by the
homeowner and which occurred while the defendant was unlawfully detained.

         Late on May 18, 2009, Camden City Police Department Sergeant Zsakhiem James responded to a report of
a robbery. James quickly arrived at the location and saw defendant Byseem T. Coles, who matched the description
of the robber, walking in his direction on the street where the crime occurred. James exited his vehicle and
questioned defendant, who appeared nervous, detaining him after he gave suspicious answers. Although a patdown
revealed no weapons or evidence of the robbery, defendant was placed in the back seat of a patrol car. Defendant
claimed he lived on the street where he was walking, but he was unable to present identification proving his claim.
Instead, he told James that there were relatives at his home who could identify him. At that point, the robbery
victim arrived for a showup identification. Although defendant’s clothes matched those of the robber, the victim
was unable to identify him as the perpetrator. James and another detective then left defendant in the patrol car while
they walked to the nearby home at which defendant claimed to reside.

         Thelma Coles, the homeowner and defendant’s aunt, confirmed that defendant lived in the house. James
wanted to view defendant’s room since he believed defendant had stopped home after the robbery. After repeatedly
asking Ms. Coles for permission to enter the room, she agreed. The door to defendant’s room was ajar a few inches
and a locked padlock was hanging from it. Other doors on the floor also were fitted with padlocks, and Ms. Coles
explained that the locks were primarily intended to keep younger children from rummaging through other people’s
belongings. In his search of the room, James discovered a shotgun and three rifles.

         Defendant was indicted on multiple weapons charges, including second-degree certain persons not to
possess weapons. He moved to suppress the evidence found in his bedroom. The trial court denied the motion,
finding that defendant was lawfully detained because police had reasonable suspicion to stop him and pat him down.
The court also concluded that James reasonably believed that Ms. Coles had authority to consent to the search of
defendant’s bedroom and that her consent was voluntarily given since she signed the consent form and admitted that
she saw no reason why she should not do so. Defendant pleaded guilty to second-degree certain persons not to
possess weapons and was sentenced to a five-year prison term with five years of parole ineligibility.

          The Appellate Division reversed the denial of defendant’s motion to suppress and his conviction. The
panel focused on whether the third-party consent search was legitimate, determining that Ms. Coles’s consent was
invalid since her familial and informal landlord status did not suffice to give her common authority over defendant’s
bedroom. Thus, the failure of the police to seek defendant’s consent, particularly in light of his nearby retention
under what the panel viewed as questionable circumstances, rendered the search unlawful. The panel noted that
reasonable suspicion to continue defendant’s detention likely ceased to exist when the victim could not identify him.
The Court granted the State’s petition for certification. 

212 N.J. 432

 (2012).

HELD: Under the circumstances presented here, a third party’s consent to conduct a warrantless search of a
defendant’s living space is insufficient to justify the search when the defendant is unlawfully detained by police.

1. The New Jersey and Federal Constitutions guarantee freedom from unreasonable searches and seizures, viewing
the warrantless entry into a person’s home as presumptively unreasonable. In order to sustain the validity of a

                                                               1
warrantless search, the State must demonstrate that it fits within an accepted exception to the warrant requirement,
such as the consent-to-search exception. In consent-based searches, the State bears the burden of proving that
proper consent was freely and voluntarily given. In a series of cases dating back forty years, the United States
Supreme Court has addressed the right of police officers to conduct warrantless searches of homes based on consent
given by a third party. In Georgia v. Randolph, 

547 U.S. 103, 122-23

 (2006), the Supreme Court considered the
validity of an occupant’s consent in the face of an objecting co-occupant, holding that it is objectively unreasonable
for police to rely on a consenting occupant when faced with a present and objecting co-occupant. However, the
search may be deemed objectively reasonable where a potentially objecting co-occupant is not present for the
threshold colloquy, so long as there is no evidence that the co-occupant was deliberately removed by police to avoid
the objection. 

Id. at 121

. In the Supreme Court’s most recent opinion on this issue, Fernandez v. California, 

571 U.S. ___

, ___ (2014), it reaffirmed that the objective-reasonableness test prevails and clarified that a potentially
objecting occupant whose absence is due to a lawful detention or arrest stands in the same shoes as an occupant who
is absent for any other reason. (pp. 16-21)

2. Like federal law, New Jersey law recognizes a third party’s ability to consent to a search when the consenter has
common authority for most purposes over the searched space. Although a police officer need not be ultimately
correct about a party’s ability to consent, the officer’s belief must have been objectively reasonable in light of the
facts and circumstances known at the time of the search. (pp. 21-23)

3. Here, turning first to the seizure of defendant’s person, the Court notes that it is undisputed that a police officer
may conduct an investigatory stop where the officer has a particularized suspicion based on an objective observation
that the person has engaged, or is about to engage, in criminal wrongdoing. The stop must be reasonable and
justified by articulable facts. The duration of a properly-conducted stop may be extended for a reasonable, limited
period for investigative purposes. In order for a continued detention to be deemed reasonable, it must have been
reasonable at its inception and throughout its entire execution. When the duration of the detention is at issue, courts
must determine whether the police diligently pursued a means of investigation that was likely to quickly confirm or
dispel their suspicions, during which time the defendant’s detention was necessary. (pp. 23-28)

4. The Court agrees with the trial court and the Appellate Division that the initial stop and detention of defendant
was reasonable. However, once defendant was not identified as the perpetrator during the showup, his continued
detention was unreasonable. Once a detention becomes unreasonable, a de facto arrest occurs, requiring that the
police have probable cause that the defendant has committed or is committing an offense. Here, defendant’s
detention continued even though the showup failed to develop probable cause for his arrest. However, in light of
James’s suspicion and defendant’s lack of identifying documents, the Court allows that James had the flexibility to
detain defendant while seeking confirmation of his identity from his relatives. Once the officers confirmed
defendant’s identity, they no longer had sufficient legal reason to continue his detention. (pp. 28-31)

5. Applying Fernandez, Ms. Coles’s consent was invalid since it was manufactured through defendant’s unlawful
detention. Thus, based on the protection afforded by Article I, Paragraph 7 of the New Jersey Constitution against
unreasonable searches of one’s home and living space and under the totality of these circumstances, the warrantless
search of defendant’s bedroom was not objectively reasonable. This holding is bolstered by Fourth Amendment
principles and the Supreme Court’s holding in Fernandez. In light of this conclusion, there is no need to address
whether Ms. Coles’s authority was sufficient to grant access to defendant’s room. (pp. 31-34)

         The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

         JUSTICE PATTERSON, DISSENTING, expresses the view that state and federal search and seizure
jurisprudence requires reversal of the Appellate Division’s determination and that, contrary to the majority’s
assertion, its holding is unsupported by federal search and seizure jurisprudence because this case falls outside of the
narrow category of situations defined by the Supreme Court in Randolph and Fernandez, in particular since the
potentially objecting occupant was not present at the home when the police arrived, or at any time during the search.

         CHIEF JUSTICE RABNER, JUSTICE ALBIN, and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON filed a separate
dissenting opinion.


                                                           2
                                     SUPREME COURT OF NEW JERSEY
                                       A-15 September Term 2012
                                                   070653

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

BYSEEM T. COLES,

    Defendant-Respondent.


         Argued October 22, 2013 – Decided May 19, 2014

         On certification to the Superior Court,
         Appellate Division.

         Frank Muroski, Deputy Attorney General,
         argued the cause for appellant (John J.
         Hoffman, Acting Attorney General of New
         Jersey, attorney; Hillary K. Horton, Deputy
         Attorney General, of counsel and on the
         briefs).

         Daniel V. Gautieri, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

         Alexander R. Shalom argued the cause for
         amicus curiae American Civil Liberties Union
         of New Jersey Foundation (Edward L. Barocas,
         Legal Director and Ronald K. Chen, Acting
         Dean of Rutgers Constitutional Litigation
         Clinic Center for Law & Justice attorneys;
         Mr. Shalom, Mr. Barocas, Mr. Chen, and
         Jeanne M. Locicero, of counsel and on the
         brief).


    JUSTICE LaVECCHIA delivered the opinion of the Court.

                                 1
     This appeal involves the validity of the warrantless search

of the bedroom of defendant, Byseem Coles, a young adult, nine

days shy of twenty years old when the events pertinent to this

appeal occurred.   Defendant lived with other family members in

his aunt’s home in Camden where he had his own bedroom.   The

bedroom door had a padlock on it to keep others, especially

young children living in the household, from getting into his

private belongings.

     On the evening of March 18, 2008, when defendant was

walking in the neighborhood in which he lived, he was detained

by a police officer investigating a reported robbery in the

area.   After a showup in which the robbery victim failed to

identify defendant as the perpetrator, and after a search of

defendant’s person that produced no evidence linking defendant

to the crime, defendant’s detention was continued because he had

no identifying documents on his person.   At defendant’s urging,

two officers walked a few houses over from where defendant was

being held in a patrol car to ask one of defendant’s relatives

to confirm that he lived at the address he had given the police.

Instead of merely confirming defendant’s identity and that he

lived in the home, the inquiries by the police turned into a

concerted effort to obtain defendant’s aunt’s permission to

search defendant’s bedroom.   During the ensuing search, weapons



                                 2
unrelated to the robbery under investigation were found in his

room.

    We conclude that defendant’s detention was unlawful.      The

police lacked probable cause to continue his detention after the

showup and the search of defendant produced no evidence linking

him to the crime.   Although the police officers were entitled to

a reasonable, but brief, opportunity to confirm defendant’s

identity, that identification was accomplished at the threshold

of defendant’s home.   When the police efforts turned immediately

thereafter to securing from defendant’s aunt consent to search

defendant’s bedroom, their actions were premised on the belief

that the man held in the patrol car was Byseem Coles.   However,

at that point, defendant’s detention ceased to be lawful.     The

interactions with defendant’s aunt cannot be disentangled from

the unlawful detention of defendant in a patrol car parked a few

houses down the street.   Thus, the objective reasonableness of

this asserted consent-based search founders on the unlawfulness

of the police detention of defendant in the totality of these

circumstances.

    Accordingly, under the totality of these circumstances, we

hold that the warrantless search of defendant’s bedroom was not

objectively reasonable, and we base that holding on the

protection provided by Article I, Paragraph 7 of the New Jersey

Constitution against unreasonable searches of one’s home and

                                 3
personal living space.   See State v. Evers, 

175 N.J. 355, 384

(2003) (granting privacy interests in home “the highest degree

of respect and protection in the framework of our constitutional

system”).

    Although our decision is based on state constitutional law,

our holding is bolstered by Fourth Amendment principles.

Federal case law supports the conclusion that a warrantless

consent-based search is objectively unreasonable and

unconstitutional when premised on defendant’s illegal detention.

See Fernandez v. California, 

571 U.S. ___

, ___, 

134 S. Ct. 1126, 1134

, 

188 L. Ed. 2d 25, 35

 (2014).

                                I.

                                A.

    The facts as summarized are based on the testimony from the

hearing conducted by the suppression court.   Differences between

what the officer learned at the scene and the information

elicited at the suppression hearing are highlighted.

    At 11:34 p.m. on May 18, 2009, Sergeant Zsakhiem James of

the Camden City Police Department responded to a report of a

robbery in Camden.   The dispatcher informed James that a “male

had just robbed a female in the area of the 1100 block of

Lakeshore Drive” and described the perpetrator as a “black male

wearing black pants and a gray hooded sweatshirt.”   James



                                4
testified that there was “information that [the perpetrator]

used a weapon,” which James believed to be a handgun.

     According to James, he arrived at the location within

“minutes” and began driving from the 1100 block, where the crime

took place, toward the 1300 block.     James saw defendant, who

matched the description of the robber, walking in James’s

direction on the street where the crime took place; in other

words, defendant was walking toward his home, which was situated

between defendant and the officer’s approaching vehicle.        James

exited his vehicle, approached defendant, and engaged him in

conversation.     James testified that he detained defendant

because he gave suspicious answers to questioning about where he

was coming from1 and because defendant appeared “nervous” and

“fidgety.”     James conducted a Terry2 frisk and called for a

backup unit because a police dog occupied the back of his K-9

vehicle and he had no other place in which to secure defendant.

The patdown of defendant revealed no weapons or any evidence of

the robbery.     Nevertheless, defendant was placed in the back

seat of the backup unit that had arrived.

     James then asked defendant where he lived.     Defendant

replied that he lived at 1287 Lakeshore Drive, the block on

1
  Defendant told James that he was coming from a takeout
restaurant several blocks away where, he said, he had purchased
a soda.
2
  Terry v. Ohio, 

392 U.S. 1

, 

88 S. Ct. 1868

, 

20 L. Ed. 2d 889

(1968).
                                   5
which he had been walking; however, he was unable to produce

identification to prove it.    He told the officers that there

were relatives at home with whom he lived -- an aunt and a

cousin -- who could identify him.

    At that point, the victim of the robbery arrived for a

showup identification and defendant was removed from the police

vehicle.   The victim was unable to identify defendant as the

perpetrator after viewing his face because, she said, “the

robber had a mask on.”    Based on defendant’s outfit -- the

ubiquitous black pants and grey hooded sweatshirt of many young

urban males -- the victim added that defendant’s clothes matched

the clothes the robber had worn.

    The officers returned defendant to the back seat of the

patrol car.    James, along with a detective, walked six houses

down the street to the residence at which defendant claimed to

reside.    A woman who identified herself as Thelma Coles, the

homeowner, answered their knock on the door.    James explained

that the officers were investigating a robbery.    He told Ms.

Coles that they “had a young man in . . . custody who[]

identified himself as Byseem Coles and stated that he lived

there.”    They asked her “if she had any identification for him.”

She replied that the officers could not have her nephew because

she had “just heard him inside . . . his room moving and banging

around.”   However, after having another family member check the

                                  6
bedroom while the officers waited at the threshold, she learned

that he was not home.

                                B.

    According to James, he then wanted to view defendant’s room

himself because he believed that defendant had stopped home

after committing the robbery and that evidence of the crime

might be discovered in the bedroom.   He repeatedly asked Ms.

Coles for permission to view the room.   Although other family

members urged her not to agree, Ms. Coles ultimately agreed to

let in only James.

    She directed him to the bedroom at the top of the stairs

leading from the front door.   Once there, James observed a

locked padlock hanging from the door, although the door was ajar

a few inches.   Other doors on the floor were also fitted with

padlocks.   He asked Ms. Coles if she had a key to the padlock on

defendant’s bedroom door and learned that she did.   He also

learned that a padlock was on defendant’s bedroom door, as well

as others, to keep others, especially younger children in the

house, from touching or rummaging through other people’s

belongings that were kept in their bedrooms.   James’s

questioning of Ms. Coles persisted at the bedroom doorway and he

extracted from Ms. Coles that she had slept in defendant’s




                                 7
bedroom recently.   No other questions were asked of Ms. Coles at

the time.3

      Concluding that she had authority to consent to a search of

the room, James began a methodic search that included looking in

first one, and then a second, duffle bag sitting on the floor of

the bedroom’s closet in order, as he explained it, to look for

the victim’s purse or a handgun hidden under the bags in the

closet.   After picking up the first zippered-closed bag, James

opened it because he thought he felt the stock of a shotgun in

it.   Discovering a shotgun in the first bag, he opened the

second duffle bag that had been underneath and that had fallen

to the ground with a loud thud.   He found a rifle in that bag.

The remainder of the search involved looking under a floor vent,

opening a safe in the room, and going through closed drawers.

Two more rifles were found below the floor vent.   Ammunition for

unrelated weapons was found in the safe and in a bag in a


3
  Later, at the suppression hearing, Ms. Coles elaborated on her
statement. She testified that she had slept in defendant’s
bedroom a couple of months earlier when her father, for personal
reasons, had stayed in her home for several weeks. On that
occasion, defendant had stayed with his mother for those weeks
to make room for the extra family member. Ms. Coles emphasized
that, although she used the bedroom for sleeping purposes, she
did not disturb defendant’s belongings other than to watch the
television located in his room. That detail concerning Ms.
Coles’s use of the room, and other information regarding
arrangements about defendant’s payment of rent, was not known to
James at the time of the search. Once James learned that Ms.
Coles had slept in the room, he did not ask any other questions
to probe the nature of her authority over the room.
                                  8
dresser drawer.   The ammunition found in the safe is not part of

the suppression motion before us.

                                C.

    On August 13, 2009, a Camden County grand jury indicted

defendant on three counts of third-degree unlawful possession of

a weapon, N.J.S.A. 2C:39-5(c)(1); third-degree unlawful

possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b); fourth-

degree unlawful possession of a defaced firearm, N.J.S.A.

2C:39-9(e); fourth-degree unlawful possession of a large

capacity ammunition magazine, N.J.S.A. 2C:39-3(j); and second-

degree certain persons not to possess weapons, N.J.S.A.

2C:39-7(b).   Defendant filed a motion to suppress the evidence

found in his bedroom.   After hearing testimony and argument, the

motion court denied the application in a written opinion.

    The motion court first dispensed with the legitimacy of

defendant’s detention, finding that the police had reasonable

suspicion to conduct a Terry stop and patdown search when

defendant matched the sex and race description, and wore

clothing fitting the description reported by the victim; gave

“incongruous answers”; and was “fidgety” and “nervous” when

describing his whereabouts.   The court concluded that

defendant’s detention was valid.

    Next, the court concluded that Ms. Coles had authority to

consent to a search of defendant’s bedroom.   The court found

                                 9
that she and defendant “share[d] control of the space” because

she occasionally slept in the room.    Although there was a

padlock on the door, Ms. Coles had a key to that lock and to

those on the other doors, which had been installed prior to the

time defendant moved into the home to keep younger children from

accessing other persons’ rooms.    Those facts, along with the

informal nature of the rental arrangement between defendant and

Ms. Coles, which was brought out in the hearing but not during

the exchange between James and Ms. Coles at the time of the

search, persuaded the court that defendant had no reasonable

expectation of privacy in the room.    With respect to whether

Sergeant James could have reasonably believed that Ms. Coles had

apparent authority over the bedroom, the court found that James

held a reasonable belief that she could consent to the search

because James had no way to know at the time of the search if

defendant paid rent; Ms. Coles had told him that she had

accessed defendant’s room in the recent past to sleep there; Ms.

Coles consented in writing to the search; and she showed James

to the bedroom door, which was ajar.

    Turning to the voluntariness of Ms. Coles’s consent, the

court considered the impact of Sergeant James’s statement,

testified to by Ms. Coles and not disputed by James, that he did

not have a search warrant but “could get one.”    Noting that it

was arguably a coercive statement, the court determined that

                                  10
consent was voluntarily given, relying on its findings that

James told Ms. Coles that she could refuse consent, that she

signed a consent form, and that she acknowledged at the

suppression hearing that she saw no reason why she should not

consent to the search.

     Finally, the court dispensed with arguments that the search

exceeded the permissible scope authorized by Ms. Coles.     Those

arguments are not pertinent to our analysis and therefore will

not be examined in detail.4

     Defendant pleaded guilty to the charge of second-degree

certain persons not to have weapons, N.J.S.A. 2C:39-7(b), in

exchange for dismissal of the remaining charges.   The court

sentenced defendant to a five-year prison term with five years

of parole ineligibility.   Defendant also was sentenced to a

three-year prison term for a violation of probation charge,

which was made to run concurrent with the sentence on the

certain-persons offense.

                                D.

4
  The court found that, although third-party consent does not
authorize a search inside another person’s private belongings
unless those items are in plain view, James immediately
recognized the feel of a shotgun inside the duffle bag in the
closet when he was searching for the stated objects of his
search, namely evidence of the robbery. After the initial
finding of the shotgun, the court explained that James saw a
rifle and magazine clip in the second unzipped bag that fell to
the floor when he had moved the first bag. The court found that
the community-caretaking exception to the warrant requirement
justified a search of the remainder of defendant’s bedroom.
                                11
    In an unpublished decision dated April 11, 2012, the

Appellate Division reversed the denial of defendant’s motion to

suppress.    The panel analyzed the motion with a focus on whether

the third-party consent search was legitimate and determined

that defendant’s “aunt did not have common authority over his

bedroom, and therefore could not consent to the search.”     The

panel also concluded that “the failure of the police to ask

defendant for his consent -- especially when defendant was

nearby and was being held in police custody under circumstances

that were, at best, questionable -- rendered the ensuing search

unlawful.”   The panel explained that courts assess the

“reasonableness of the search in the totality of the

circumstances, and must avoid applying” exceptions to the

warrant requirement “in a vacuum.”

    According to the panel, Ms. Coles did not have common

actual authority to consent to the search because, even if Ms.

Coles accessed defendant’s room for “‘limited purposes,’ that

. . . does not give [her] authority to consent to a search.”

The panel stated that although Ms. Coles occasionally slept in

defendant’s bedroom and had a key to it, her familial and

landlord status did not give her authority to consent to a

search of defendant’s bedroom.   The panel determined that the

motion court erred in its reliance on State v. Crumb, 

307 N.J. Super. 204, 243-46

 (App. Div. 1997), certif. denied, 

153 N.J. 12 215

 (1998), which involved a different familial relationship

between the parties, a different rental arrangement between

those parties, and a room with only an unhinged door to provide

privacy.   Here, the panel determined that the motion court erred

in concluding that defendant was not a tenant in his aunt’s

home, where this almost twenty-year-old nephew paid his aunt

$250 per month in board, which the police could have discovered

by inquiring.   Although defendant was not always required to pay

rent or risk eviction, the panel was not persuaded that the

informality of the rental agreement authorized defendant’s

landlady to consent to a search of his room under State v.

Coyle, 

119 N.J. 194, 217

 (1990).

    In addressing the overall unreasonableness of the search,

the panel noted that the police ignored “the very person with

the superior right to control access to the room” --

defendant -- who was in police custody six houses away.

Instead, without explanation, the police decided to obtain

consent from Ms. Coles.   The panel stated that the conduct of

the police leading up to the search was of “questionable

validity” because reasonable suspicion to continue to detain

defendant had likely “evaporated” when the victim was unable to

identify him as the perpetrator.     Citing Georgia v. Randolph,

547 U.S. 103, 121

, 

126 S. Ct. 1515, 1527

, 

164 L. Ed. 2d 208, 226-27

 (2006), the panel concluded that “defendant’s continued

                                13
detention” in those questionable circumstances contravened

federal precedent.   Using a totality-of-the-circumstances

assessment, the panel held the search to be unreasonable,

reversed the suppression order of the trial court and

defendant’s conviction, and remanded for entry of an order

suppressing the evidence and further proceedings.

    We granted the State’s petition for certification.       State

v. Coles, 

212 N.J. 432

 (2012).

                                 II.

                                 A.

    The State seeks reversal of the Appellate Division’s

decision.   The State contends that Ms. Coles possessed

sufficient common authority over defendant’s bedroom to consent

to a search of the room.   The State’s argument in that respect

is based on Ms. Coles’s status as defendant’s aunt, the fact

that she had recently slept in the room, and that she had a key

to the padlock mounted on the door.    Further, the State

maintains that, based on the totality of the circumstances,

Sergeant James’s belief that Ms. Coles possessed common

authority over the room was reasonable and that the search

therefore was justified.

    The State further argues that defendant’s detention was

proper and based on reasonable suspicion.   Accordingly, it

maintains that the third-party consent search was legitimate

                                 14
because defendant was not present at the scene and objecting to

the search.   The State relies on 

Randolph, supra,

547 U.S. at 121-22

, 

126 S. Ct. at 1527

, 

164 L. Ed. 2d at 226-27

, as well as

the more recent decision in 

Fernandez, supra,

571 U.S. at ___

,

134 S. Ct. at 1133-34

, 

188 L. Ed. 2d at 34

, to support that

contention.   Finally, the State disputes that Ms. Coles’s

consent was not knowing, voluntary, and intelligent at all

stages of the search.

                                B.

    Defendant argues that the appellate panel’s decision should

be affirmed because his aunt had neither actual nor apparent

authority to consent to a search of his bedroom.   He asserts

that he was a tenant and that he maintained exclusive control

over his room.

    He also contends that his detention was improper.    He

argues that Sergeant James lacked reasonable suspicion when the

detention began and that after the victim did not identify him

there was no probable cause to continue his detention.

Therefore, the subsequent search of his room was impermissible

under Randolph because the police knowingly kept defendant

detained in the patrol car to avoid the possibility that he

would refuse to consent to the search.   Finally, defendant

argues that Ms. Coles’s consent to the search was not voluntary

but rather was the result of police coercion.

                                15
                                C.

    The American Civil Liberties Union of New Jersey (ACLU),

appearing as amicus curiae, urges this Court to affirm the

appellate panel’s decision.   The ACLU submits that a landlord-

tenant relationship existed in this case; that Ms. Coles’s

limited access to the room did not alter the basic assumption

that defendant maintained a reasonable expectation of privacy

when he occupied his room; and that Ms. Coles’s familial role as

defendant’s aunt does not and should not alter that assumption.

Accordingly, Ms. Coles did not possess common authority to

consent to a search of defendant’s room.   Further, the ACLU

contends that police should not be permitted to utilize

selective questioning techniques to avoid obtaining information

that would undercut the appearance of common authority.

Finally, the ACLU argues that, even if Ms. Coles had the

authority to consent to the search, the scope of that authority

did not extend to secured containers within the room.

                               III.

                                A.

    The New Jersey and Federal Constitutions guarantee the

rights of persons to be free from unreasonable searches and

seizures.   N.J. Const. art. I, ¶ 7; U.S. Const. amend. IV.    The

Fourth Amendment and the New Jersey Constitution assure the

“highest degree of protection to privacy interests within the

                                16
home.”    State v. Johnson, 

193 N.J. 528, 532

 (2008).   Both

protect against unreasonable searches and regard the warrantless

entry into a person’s home as “presumptively unreasonable.”     

Id. at 552

 (internal quotation marks omitted); Payton v. New York,

445 U.S. 573, 586

, 

100 S. Ct. 1371, 1380

, 

63 L. Ed. 2d 639, 651

(1980).

    To sustain the validity of a warrantless search, the State

must demonstrate that the search fits within an accepted

exception to the warrant requirement, one of which is the long-

recognized consent-to-search exception.    See 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).

                                  B.

    In a series of decisions dating back forty years, the

United States Supreme Court has addressed the right of police

officers to conduct warrantless searches of homes based on

consent given by a third party.    See United States v. Matlock,

415 U.S. 164, 171-72

, 

94 S. Ct. 988, 993

, 

39 L. Ed. 2d 242, 249-50

 (1974) (affirming warrantless entry and search by police

officers who obtained consent of person possessing common

authority over premises searched); Illinois v. Rodriguez, 

497 U.S. 177, 185-89

, 

110 S. Ct. 2793, 2800-02

, 

111 L. Ed. 2d 148, 159-61

 (1990) (affirming search by police based on consent

                                  17
granted by person whom police reasonably believed possessed

common authority over premises to be searched).    In consent-

based searches, the State bears the burden of proving that

proper consent was given freely and voluntarily.     

Schneckloth, supra,

412 U.S. at 223

, 

93 S. Ct. at 2045-46

, 

36 L. Ed. 2d at 860-61

; State v. Johnson, 

68 N.J. 349, 354

 (1975).

    The United States Supreme Court has relied on the test of

objective reasonableness in third-party consent searches.     It

was the underpinning of the apparent authority holding in

Rodriguez, supra.

   See 

497 U.S. at 185-86

, 

110 S. Ct. at 2799

-

2800, 

111 L. Ed. 2d at 159-60

.   There, the actions of the police

were overtly tested by that standard when consent was granted by

a third party in the absence of the defendant against whom the

evidence seized would be used in a criminal trial.    

Ibid.

    Moreover, the United States Supreme Court has held that,

when faced with the circumstances of a present and objecting co-

occupant, it is objectively unreasonable for police to rely on

the consenting occupant.   In 

Randolph, supra,

 the Court’s

majority opinion, written by Justice Souter, held that the

physically present co-occupant’s stated refusal to permit entry

prevails.   

547 U.S. at 122-23

, 

126 S. Ct. at 1528

, 

164 L. Ed. 2d at 227

.

    In Randolph, a wife had returned to the home she shared

with her husband, after she had been staying with her family for

                                 18
several months.   

Id. at 106

, 

126 S. Ct. at 1519

, 

164 L. Ed. 2d at 217

.   She called the police to the home when her husband took

their child away after a dispute erupted between the couple.

Id. at 107

, 

126 S. Ct. at 1519

, 

164 L. Ed. 2d at 217

.    When the

police arrived, she told them that her husband was a drug user

and volunteered that there was evidence of that in the house.

Ibid.

   The husband was present during this exchange and refused

to grant the officers permission to search the home.    

Ibid.

After the police searched the home pursuant to the wife’s

consent, the defendant moved to suppress the evidence seized

during the search.   The Supreme Court of Georgia sustained a

reversal of an initial order of suppression and the United

States Supreme Court affirmed the suppression of the seized

evidence.   The Supreme Court majority held that a warrantless

search of shared dwelling space over the clear refusal of

consent by a physically present resident is not reasonable, and

required suppression of evidence that was seized on the basis of

consent provided by another resident.   

Id. at 120

, 

126 S. Ct. at 1526

, 

164 L. Ed. 2d at 226

.

    The Randolph majority also addressed two “loose ends” from

its prior decisions in Matlock and Rodriguez.   

Id. at 120-21

,

126 S. Ct. at 1527

, 

164 L. Ed. 2d at 226

.   First, the Court

explained that Matlock’s recognition of a co-tenant’s right to

admit the police arises from the role that customary social

                                19
usage bears in assessing the reasonableness of a search under

the Fourth Amendment.   

Ibid.

   The Randolph majority stated that

the right to admit arises not from “property right”

considerations but rather from customary social understanding of

whether there is a right to admit “powerful enough to prevail

over the co-tenant’s objection.”      

Ibid.

   Second, the Court’s

majority opinion noted that fine factual nuances distinguished

Matlock and Rodriguez from Randolph and acknowledged the “fine

line” it was drawing:

         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.

              This is the line we draw, and we think
         the formalism is justified.      So 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 [the search may be deemed
         objectively reasonable].

         [Id. at 121, 

126 S. Ct. at 1527

, 

164 L. Ed. 2d at 226-27

 (emphasis added).]

    While emphasizing a disinclination to turn every co-tenant

consent case into an examination into police efforts to locate a

potential objector, the Court cautioned that police cannot make

a defendant unavailable for the sake of avoiding a possible

objection.   See 

id. at 121-22

, 

126 S. Ct. at 1527-28

, 

164 L. Ed. 20

2d at 226-27.    That noted exception was the subject of attention

in the Court’s most recent opinion in this line of cases.

    In 

Fernandez, supra,

 the Court reaffirmed the “touchstone”

of objective reasonableness.     

571 U.S. at ___

, 

134 S. Ct. at 1132

, 

188 L. Ed. 2d at 32

.     Fernandez also clarified 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, ratifying that Randolph’s holding otherwise

requires the presence of the objecting occupant.     

Id.

 at ___,

134 S. Ct. at 1134

, 188 L. Ed. at 35.     We take from Fernandez

two things:     (1) that the objective-reasonableness test

prevails; and (2) that police responsibility for the unlawful

detention or removal of a tenant who was prevented from being

present at the scene to voice his or her objection to the search

is not equivalent to other neutral circumstances causing the

defendant’s absence.

                                  C.

    Our state law on consent searches similarly has recognized

a third party’s ability to consent to a search when the

consenter has common authority for most purposes over the

searched space.    See State v. Suazo, 

133 N.J. 315, 319-20

 (1993)

(noting Matlock and Rodriguez upholding, under federal and state

constitutions, third-party consent rendering warrantless search

of premises objectively reasonable).     As we have explained,

                                  21
police officers need not ultimately be factually correct about a

party’s ability to consent to a search.   

Id. at 320

.    The

question is “whether the officer’s belief that the third party

had the authority to consent was objectively reasonable in view

of the facts and circumstances known at the time of the search.”

Ibid.; see also 

Crumb, supra,

307 N.J. Super. at 243

 (upholding,

as objectively reasonable, officer’s warrantless search of adult

son’s bedroom in mother’s trailer home based on mother’s consent

where bedroom lacked hinged door and thus provided no

expectation of privacy).

     The appellate panel in 

Crumb, supra,

 noted that appellate

decisions from our state generally have aligned with “the

overwhelming majority of [jurisdictions] in holding that a

parent has the right to consent to the search of the property of

his or her son or daughter.”   

307 N.J. Super. at 243

.    In

assessing the objective reasonableness in a circumstance

involving an adult child living with parents, the Crumb panel

discussed factors to consider when determining whether a child

has exclusive possession of his or her room, such as whether the

child pays rent;5 whether the parent has access to the child’s


5
  In a parent-child or other familial relationship, depending on
the age of the child and the relationship, the typical rules
governing a landlord’s inability to consent to the search of a
tenant’s rented premises do not translate with crystalline
clarity. See State v. Scrotsky, 

39 N.J. 410, 415

 (1963). Even
the typical landlord, who may have a right to access the
                                22
room for cleaning or other such general access purposes; and

whether the child has the right to lock the door to deny access.

Id. at 245.

    Ultimately, under our state law, the question remains one

of objective reasonableness based on an assessment of the

totality of the circumstances.

                                 IV.

    We thus turn to assess the objective reasonableness of the

circumstances leading to the search of defendant’s bedroom.

That assessment necessarily begins with review of the seizure of

defendant’s person.

                                 A.

    The suppression court determined that Sergeant James had

reasonable suspicion to stop and briefly detain defendant,

explaining its reasoning as follows:

              The determination of the legality of
         the detention that followed the questioning
         of Defendant requires a review of the
         totality of the circumstances.       Here, the
         totality of the circumstances includes:      1)
         the   fact   that   Defendant    was    wearing
         practically identical clothing to that of
         the robbery suspect (as confirmed by the
         robbery victim); 2) the incongruous answers
         Defendant gave regarding where he had been
         and where he was going (and, more precisely,
         Sgt.   James’s   knowledge,   based    on   his
         familiarity with the area, that the answers


tenant’s room for specific “limited purposes,” does not by
virtue of such authority have the ability to consent to a
search. 

Coyle, supra,

119 N.J. at 216

.
                                 23
         were factually suspect); and 3) Defendant’s
         “fidgety” and “nervous” conduct as he spoke
         with Sgt. James, an 18-year Camden police
         veteran.

    The Appellate Division had no quarrel with the initial stop

by James, who was investigating a reported armed robbery in the

neighborhood in which he encountered defendant, but the panel’s

review of the circumstances of the continued investigatory

detention of defendant after the victim was unable to identify

defendant as her assailant led it to conclude that the continued

detention may have been unreasonable.   We note at the outset

that the Appellate Division’s review was itself conducted “with

substantial deference to the trial court’s factual findings,

which [it] ‘must uphold . . . so long as those findings are

supported by sufficient credible evidence in the record.’”

State v. Hinton, 

216 N.J. 211, 228

 (2013) (omission in original)

(quoting State v. Handy, 

206 N.J. 39, 44

 (2011)).   However, a

reviewing court owes no deference to the trial court’s

determinations as to matters of law, and those determinations

are reviewed de novo.    State v. Buckley, 

216 N.J. 249, 260-61

(2013); State v. Schubert, 

212 N.J. 295, 304

 (2012).

    Those standards also govern our review of the legality of

defendant’s detention.

                                 B.




                                 24
    A warrantless seizure of a person is “‘presumptively

invalid as contrary to the United States and the New Jersey

Constitutions’” unless that warrantless seizure “‘falls within

one of the few well-delineated exceptions to the warrant

requirement.’”     State v. Mann, 

203 N.J. 328, 337-38

 (2010)

(quoting State v. Pineiro, 

181 N.J. 13, 19

 (2004), and State v.

Elders, 

192 N.J. 224, 246

 (2007), respectively).     An

investigatory stop of a person -- sometimes referred to as a

Terry stop -- is one such exception.     State v. Rodriguez, 

172 N.J. 117, 126-27

 (2002).

    It is undisputed that a police officer may conduct an

investigatory stop of a person if that officer has

“particularized suspicion based upon an objective observation

that the person stopped has been or is about to engage in

criminal wrongdoing.”     State v. Davis, 

104 N.J. 490, 504

 (1986)

(internal quotation marks omitted); accord 

Mann, supra,

203 N.J. at 338

.   The stop must be reasonable and justified by

articulable facts; it may not be based on arbitrary police

practices, the officer’s subjective good faith, or a mere hunch.

See State v. Shaw, 

213 N.J. 398, 411

 (2012); Rodriguez, supra,

172 N.J. at 127

.

    There is a recognized constitutional balance to be struck

between individual freedom from police interference and the

legitimate and reasonable needs of law enforcement.       See 

Davis, 25 supra,

104 N.J. at 502

 (noting that “Article I, paragraph 7 of

the New Jersey Constitution ‘does not speak in absolute terms

but strikes a balance between the interests of the individual in

being free of police interference and the interests of society

in effective law enforcement’” (quoting State v. Dilley, 

49 N.J. 460, 468

 (1967))); see also State v. Arthur, 

149 N.J. 1, 7

(1997) (noting police conduct may be “assessed by ‘balancing the

need to search (or seize) against the invasion which the search

(or seizure) entails’” (quoting 

Terry, supra,

392 U.S. at 21

, 

88 S. Ct. at 1879

, 

20 L. Ed. 2d at 905

)).   That balance is critical

because both the Fourth Amendment to the United States

Constitution and Article I, Paragraph 7 of the New Jersey

Constitution guarantee to New Jersey’s citizens “[t]he right to

walk freely on the streets of a city without fear of an

arbitrary arrest.”   State v. Gibson, ___ N.J. ___, ___ (2014)

(slip op. at 8).   When evaluating the reasonableness of a

detention, the “totality of circumstances surrounding the

police-citizen encounter” must be considered.   State v. Privott,

203 N.J. 16, 25

 (2010) (quoting 

Davis, supra,

104 N.J. at 504

).

    Case law has recognized law enforcement’s need to respond

to the fluidity of a street encounter where there is a

reasonable suspicion of wrongdoing; accordingly, the duration of

the investigative stop may be extended for a reasonable but

limited period for investigative purposes.   See, e.g., State v.

                                26
Sloane, 

193 N.J. 423, 426

 (2008) (upholding officer’s decision

to search NCIC database during traffic stop because that

decision “did not unreasonably prolong the stop”); State v.

Herrera, 

187 N.J. 493, 504

 (2006) (upholding investigatory

stop).   The reasonableness of a continued detention is

determined through application of a two-pronged inquiry.       First,

the detention must have been reasonable at its inception.       See

State v. Dickey, 

152 N.J. 468, 476

 (1998); 

Davis, supra,

104 N.J. at 504, 507

.   Second, the scope of the continued detention

must be reasonably related to the justification for the initial

interference.   

Dickey, supra,

152 N.J. at 476

.    Thus, the

detention must be reasonable both at its inception and

throughout its entire execution.     See ibid.; United States v.

Sharpe, 

470 U.S. 675, 682-83

, 

105 S. Ct. 1568, 1573-74

, 

84 L. Ed. 2d 605, 613

 (1985).   Further, the officer must use the least

intrusive means necessary to effectuate the purpose of the

investigative detention, 

Davis, supra,

104 N.J. at 504

, and the

detention must “last no longer than is necessary to effectuate

the purpose of the stop,” 

Shaw, supra,

213 N.J. at 411

 (quoting

Florida v. Royer, 

460 U.S. 491, 500

, 

103 S. Ct. 1319, 1325

, 

75 L. Ed. 2d 229, 238

 (1983)).

    Our Court has recognized that “[t]here is [no] litmus-paper

test for . . . determining when a seizure exceeds the bounds of

an investigative stop”; instead, when the duration of the

                                27
detention is at issue, the proper question is “whether the

police diligently pursued a means of investigation that was

likely to confirm or dispel their suspicions quickly, during

which time it was necessary to detain the defendant.”     

Dickey, supra,

152 N.J. at 476-77

 (second alteration in original)

(internal quotation marks omitted); see also State v. Baum, 

199 N.J. 407, 425

 (2009) (stating continued detention beyond time

needed to effectuate purpose of investigative detention

constituted de facto arrest).

                                C.

    In the matter at hand, we agree with the trial court and

the Appellate Division that Sergeant James’s initial stop and

detention of defendant was reasonable.   We have no quarrel with

James’s patdown of defendant or his detention of defendant to

enable a showup identification to be conducted.   However, once

the victim of the reported armed robbery arrived for a showup

and was unable to identify defendant as the perpetrator, the

calculus changed.

    In assessing the reasonableness of a detention’s duration,

we have upheld a police officer’s short-term detention of a

suspect for the purpose of conducting a showup identification.

See, e.g., State v. Henderson, 

208 N.J. 208, 259

 (2011) (noting

“[s]howups often occur at the scene of a crime soon after its

commission”); State v. Romero, 

191 N.J. 59, 78

 (2007) (upholding

                                28
showup identification conducted during investigative detention).

Such a brief investigative detention serves the beneficial

purpose of quickly exonerating innocent suspects.       See 

Romero, supra,

191 N.J. at 78

; 

Herrera, supra,

187 N.J. at 504

(acknowledging showup identifications may “tend to avoid or

minimize inconvenience and embarrassment to the innocent”).           In

that respect, it is a trade-off.       By detaining an individual for

whom probable cause to arrest is lacking in order that a showup

might take place, the person exonerated by the showup is able to

be on his or her way without the delay and inconvenience of

being brought to headquarters and being required to submit to a

line-up.   See 

Herrera, supra,

187 N.J. at 504

 (discussing

utility of showup identifications).       In other words, the

exonerated person is not to be subjected to further detention.

    A continued detention must conform to the constitutional

requirement of the reasonableness standard that governs all

investigative stops.   If an officer’s conduct is unnecessarily

intrusive or if the suspect is detained for a period beyond what

can be considered reasonable, a de facto arrest occurs.         See

Dickey, supra,

152 N.J. at 478

.    Once a de facto arrest occurs,

the particularized suspicion that originally supported the

investigative detention is no longer sufficient and the arrest

must be supported by probable cause.       See Gibson, supra, ___

N.J. at ___ (slip op. at 8) (“A person cannot be arrested unless

                                  29
there is probable cause to believe that he has committed or is

committing an offense.”).   An arrest unsupported by probable

cause constitutes an “unreasonable seizure in violation of both

the Federal and State Constitutions.”   Ibid.

     Here, defendant was prevented from going on his way after

the showup failed to develop probable cause to arrest him.6

James continued to detain defendant because defendant did not

have any identification documents on him to prove that he was

Byseem Coles and that he lived where he said that he did.     While

individuals are not required to carry identifying documents on

them at all times in our free country, we accept that law

enforcement acting under reasonable suspicion of an individual

can expend a brief but reasonable period of time to confirm an

individual’s identity in circumstances as presented here.     Our

case law has recognized a reasonable and brief interlude of time

to permit such identifications to take place.   See, e.g., 

Handy, supra,

206 N.J. at 47

 (finding no quarrel with officer’s

extension of investigatory stop of suspect to ascertain

identity); 

Sloane, supra,

193 N.J. at 437

 (finding officer’s

running of NCIC check and driver’s license check reasonable

during traffic stop); State v. Nishina, 

175 N.J. 502, 513

 (2003)


6
  At oral argument the State acknowledged that it lacked probable
cause to arrest defendant after the showup did not result in
defendant’s identification as the perpetrator of the armed
robbery under investigation.
                                30
(holding officer “was justified in continuing to question

defendant,” including asking for identification).

    Therefore, we allow that Sergeant James had the flexibility

to seek confirmation of defendant’s identity, as defendant had

suggested to James, from defendant’s relatives who were

reportedly at his nearby home.   We further do not propose to

hamstring the police officers’ on-the-scene determination to

keep defendant detained in the patrol car while two officers

approached the door of the home to which defendant directed

them.   Where we do part ways with the reasonableness of the

police officers’ conduct is with what transpired at the doorway.

    At the threshold to the home, in an exchange with

defendant’s aunt, the officers dropped their suspicion of

whether defendant was who he said he was -- Byseem Coles.      Their

actions demonstrated that they had confirmed his identity and

that he lived there because they commenced a concerted course of

action to secure defendant’s aunt’s permission to let them

search his bedroom.   However, in accepting those beliefs as to

defendant’s identity and residence, the officers no longer had

sufficient legal reason to continue his detention.   At that

point, defendant’s continued police detention was no longer

lawful.

    The upshot of that alteration in the legality of the police

detention of defendant is that the State cannot claim that James

                                 31
secured a valid consent to search defendant’s room from his

aunt.   The validity of this consent-premised search turns on the

objective reasonableness of the police conduct based on the

totality of the circumstances.

    As the United States Supreme Court’s Fernandez opinion

makes clear, valid third-party consent is subject to the

exception that the third party’s consent cannot be manufactured

through the unlawful detention of the defendant.   That is what

occurred here.   Defendant was being unlawfully detained the

moment the last vestige of a valid, continued investigatory

detention had been resolved through confirmation of his identity

and residence.   At that point, he was entitled to be released.

But, he was not.   Rather, his detention continued while an

officer questioned his aunt and obtained her consent rather than

defendant’s to the search of his bedroom.   The objective

reasonableness of this asserted consent-based search ends with

our conclusion that defendant was being unlawfully detained by

police, a few houses away from his home, as soon as the officers

at the doorway of his home transferred their focus from securing

confirmation of defendant’s identity to securing unilateral

consent from defendant’s aunt for the search of defendant’s

room.

    We need not address whether defendant’s aunt’s authority,

standing alone, was sufficient to grant the officers access to

                                 32
the private bedroom of this young adult male living, as so many

people do, in an extended-family living arrangement.    We note

only that, in such settings, personal privacy rights are not

easily assessed through any uniform set of questions.    We

decline to parse the thoroughness of the officer’s questioning

of the aunt, and his judgment based on her on-the-scene answers

because, in the totality of these circumstances, this asserted

consent-based search went off the rails of objective

reasonableness once the officer began to secure consent from

her.   The officer’s action detaining defendant in a patrol car

when probable cause to arrest was lacking effectively prevented

any objection from defendant.   It also prevented him from

disputing his aunt’s statements in response to police inquiries

about control over the room.

       We conclude that the objective reasonableness of this

asserted consent-based search founders on the unlawfulness of

the police detention of defendant in the totality of these

circumstances.   See 

Suazo, supra,

133 N.J. at 320

 (adopting test

of objective reasonableness based on totality of circumstances

for asserted third-party consent searches of homes).    Under the

totality of these circumstances, we hold that the warrantless

search of defendant’s bedroom was not objectively reasonable,

and we base our holding on the protection provided by Article I,

Paragraph 7 of the New Jersey Constitution against unreasonable

                                 33
searches of one’s home and personal living space.   See 

Evers, supra,

175 N.J. at 384

 (granting privacy interests in home “the

highest degree of respect and protection in the framework of our

constitutional system”).

    Although our decision is based on state constitutional law,

our holding is bolstered by Fourth Amendment principles.

Federal case law also supports the conclusion that a warrantless

consent-based search is objectively unreasonable and

unconstitutional when premised on a defendant’s illegal

detention.   See 

Fernandez, supra,

571 U.S. at ___

, 

134 S. Ct. at 1134

, 

188 L. Ed. 2d at 35

.

                                V.

    The judgment of the Appellate Division is affirmed as

modified by this opinion.

     CHIEF JUSTICE RABNER and JUSTICE ALBIN, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE PATTERSON filed a separate,
dissenting opinion.




                                34
                                      SUPREME COURT OF NEW JERSEY
                                        A-15 September Term 2012
                                                 070653

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

BYSEEM T. COLES,

    Defendant-Respondent.


    JUSTICE PATTERSON, dissenting.

    In its recent decision in Fernandez v. California, 

571 U.S. ___

, 

134 S. Ct. 1126

, 

188 L. Ed. 2d 25

 (2014), the United States

Supreme Court confirmed that an occupant’s consent to a police

search of a residence is effective unless a co-tenant who is

present at the scene objects to the search.   The Supreme Court

reaffirmed its holding in Georgia v. Randolph, 

547 U.S. 103, 106

, 

126 S. Ct. 1515

, 

164 L. Ed. 2d 208

 (2006), and settled a

debate about the reach of that decision.   Following 

Fernandez, supra,

 federal search and seizure law regarding this issue is

clear: unless 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



                                  1
search of a residence.   

571 U.S. at ___

, 

134 S. Ct. at 1134-35

,

188 L. Ed. 2d at 35

.

    In this case, there was no objecting co-tenant present at

the scene.   The police did not remove defendant from his home to

forestall a potential objection; defendant was detained

elsewhere and was not at his home when the search was consented

to and conducted.   Accordingly, this case does not present a

setting akin to Randolph, the narrow parameters of which were

underscored by the Supreme Court in Fernandez.   With the scope

of Randolph having been clarified by Fernandez, it is clear that

this case is not within the limitations of Randolph and that the

police search of defendant’s home simply did not run afoul of

the Fourth Amendment.

    Nonetheless, the majority holds that by virtue of an

unlawful detention of defendant a short distance away from the

residence at issue, the consent of defendant’s aunt, Thelma

Coles, did not authorize the search of her home, and that

defendant’s motion to suppress should have been granted.    In so

doing, the majority does not expressly state that it diverges

from the federal constitutional principles recently articulated

in Fernandez.   Although the majority premises its holding on

Article I, Paragraph 7 of the New Jersey Constitution, it finds

support for its decision in the Supreme Court’s pronouncement in

                                   2
Fernandez, which it interprets to hold that a consent-based

search is unconstitutional “when premised on defendant’s illegal

detention,” no matter where that detention occurs.    Ante at ___

(slip op. at 4).

    In my view, the majority’s holding simply cannot be squared

with federal precedent.   In the wake of Fernandez –- in which

the Supreme Court adamantly limited Randolph to cases involving

a co-tenant who is first present at, and then removed from, the

scene -- the majority nonetheless construes Randolph to govern a

setting devoid of that dispositive factor.    Because I do not

concur with the majority’s interpretation of federal law, or its

substantial expansion of New Jersey search and seizure

protections beyond Fourth Amendment parameters, I respectfully

dissent.

                                I.

    The United States Supreme Court’s decision in Fernandez is

the latest in a series of opinions addressing the impact of

consent given by a person with authority over the premises to

the search of a shared home.   As the majority notes, the first

such opinion was United States v. Matlock, 

415 U.S. 164

, 

94 S. Ct. 988

, 

39 L. Ed. 2d 242

 (1974).    There, the Supreme Court

upheld a warrantless, consent-based search of a defendant’s home

based on the voluntary consent of a woman with whom the

                                     3
defendant lived after the defendant was arrested in his front

yard and placed in a squad car.     

Id. at 166, 169

, 

94 S. Ct. at 991, 992

, 

39 L. Ed. 2d at 247, 248

.      The Supreme Court held that

“the consent of one who possesses common authority over premises

or effects is valid as against the absent, nonconsenting person

with whom that authority is shared.”      

Id. at 170

, 

94 S. Ct. at 993

, 

39 L. Ed. 2d at 249

.     The Supreme Court later applied that

principle set forth in Matlock to permit a search “based upon

the consent of a third party whom the police, at the time of the

entry, reasonably believe[d] . . . possess[ed] common authority

over the premises, but who in fact d[id] not do so.”      Illinois

v. Rodriguez, 

497 U.S. 177, 179, 186

, 

110 S. Ct. 2793, 2796, 2800

, 

111 L. Ed. 2d 148, 155, 160

 (1990).

    The sole exception to the rule of Matlock was defined by

the Supreme Court in Randolph.     There, the defendant was present

at his home shortly after police arrived in response to a

complaint of a domestic dispute.     

Randolph, supra,

547 U.S. at 107

, 

126 S. Ct. at 1519

, 

164 L. Ed. 2d at 217

.     Although the

defendant’s wife advised police that her husband used drugs and

“volunteered that there were items of drug evidence in the

house,” the defendant “unequivocally refused” to consent to a

search of his home.   

Ibid.

   (internal quotation marks omitted).

Police then turned to the defendant’s wife for consent, “which

                                     4
she readily gave.”   

Ibid.

    The Supreme Court held that the

evidence generated by the search should have been suppressed,

stating that in the circumstances presented, “a physically

present co-occupant’s stated refusal to permit entry prevails,

rendering the warrantless search unreasonable and invalid as to

him.”   

Id. at 106

, 

126 S. Ct. at 1518-19

, 

164 L. Ed. 2d at 217

.

In a passage quoted by the majority here, the Supreme Court

distinguished between a potential objector with self-interest in

objecting who “is in fact at the door” objecting, and a

potential objector who is “nearby but not invited to take part

in the threshold colloquy.”     

Id. at 121

, 

126 S. Ct. at 1527

, 

164 L. Ed. 2d at 226

.    The former, ruled the Supreme Court, wins the

argument; the latter “loses out.”     

Ibid.

    If the Supreme Court in Randolph left some uncertainty as

to whether its holding would afford Fourth Amendment protections

to a potential objector who is not “in fact at the door” because

he is unlawfully detained elsewhere, there is no longer any such

uncertainty after Fernandez.     Although the majority cites

Fernandez for the general proposition that the objective

reasonableness test governs this Fourth Amendment analysis and

that police control over the whereabouts of an absent tenant is

distinct from neutral causes of that absence, the Supreme



                                     5
Court’s holding actually stands for much more.         Indeed, it

directly addresses the issue presented in this case.

    

Fernandez, supra,

 arose in the context of a police

investigation into an alleged robbery.        

571 U.S. at ___

, 

134 S. Ct. at 1130

, 

188 L. Ed. 2d at 30

.      When officers arrived at the

scene, they observed a man who was later identified as the

defendant run through an alley and into an apartment building.

Id.

 at ___, 

134 S. Ct. at 1130

, 

188 L. Ed. 2d at 31

.         Shortly

thereafter, the officers “heard sounds of screaming and fighting

coming from that building.”    

Ibid.

       The officers went to the

apartment door, where they were met by a crying and apparently

battered woman.   

Ibid.

   They asked the woman to step away from

the door so that they could conduct a protective sweep.         

Ibid.

Prior to entering, however, the officers immediately encountered

the “[a]pparently agitated” defendant, who vehemently objected

to their entry.   

Ibid.

   Suspecting that the defendant had

assaulted the woman, the officers removed the defendant from the

apartment, arrested him, and returned an hour later to search

the apartment with the woman’s consent.        

Ibid.

    The defendant in Fernandez argued that his case fit within

the parameters of Randolph, contending that “his absence should

not [have] matter[ed] since he was absent only because the

police had taken him away.”    

Id.

 at ___, 

134 S. Ct. at 1134

, 188

                                       6
L. Ed. 2d at 35.   He also contended that “it was sufficient that

he objected to the search while he was still present,” asserting

that his objection “should remain in effect until the objecting

party no longer wishes to keep the police out of his home.”

Ibid. (internal quotation marks omitted).    Rejecting both

arguments, the Supreme Court made clear that the touchstone of

Randolph was the physical presence of the objecting occupant at

the premises when the police sought consent for, and conducted,

the search.   Id. at ___, 

134 S. Ct. at 1134-35

, 

188 L. Ed. 2d at 35

.   Writing for the majority, Justice Alito confirmed that an

authorized occupant’s consent to search is vitiated only by the

objection of a co-tenant present at the scene, or by the police

removal of a co-tenant who was initially at home when the police

arrived, but was removed from the premises in an apparent effort

to forestall an objection.   

Ibid.

   The Court noted:

           Our opinion in Randolph took great pains to
           emphasize that its holding was limited to
           situations in which the objecting occupant
           is physically present.  We therefore refuse
           to extend Randolph to the very different
           situation in this case, where consent was
           provided by an abused woman well after her
           male partner had been removed from the
           apartment they shared.

           [Id. at ___, 

134 S. Ct. at 1130

, 

188 L. Ed. 2d at 30

.]

      Citing a litany of references in Randolph to the physical

presence of the objecting defendant, the Supreme Court
                                   7
emphasized in Fernandez that its “opinion [in Randolph] went to

great lengths to make clear that its holding was limited to

situations in which the objecting occupant is present.     Again

and again, the opinion of the Court stressed this controlling

factor.”   

Id.

 at ___, 

134 S. Ct. at 1133-34

, 

188 L. Ed. 2d at 34

.

      Accordingly, the Supreme Court held that “[t]he Randolph

holding unequivocally requires the presence of the objecting

occupant in every situation other than the one mentioned in the

dictum discussed above.”   

Id.

 at ___, 

134 S. Ct. at 1134-35

, 

188 L. Ed. 2d at 35

.   Importantly, the Supreme Court defined the

Randolph dictum as constrained to the precise situation that it

had addressed in that case.   It found that consent by one

occupant is sufficient as 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.”     

Id.

 at

___, 

134 S. Ct. at 1134

, 

188 L. Ed. 2d at 35

 (quoting 

Randolph, supra,

547 U.S. at 121

, 

126 S. Ct. at 1527

, 

164 L. Ed. 2d at 226-27

).   Thus, the United States Supreme Court drew a bright

line.   It distinguished a co-tenant present at the scene -- who

either directly asserts an objection to a police search or is

initially present and then removed from his home by police to

avoid a confrontation -- from all other objecting occupants of

                                   8
homes searched by virtue of a co-tenant’s consent.    

Id.

 at ___,

134 S. Ct. at 1134-35

, 

188 L. Ed. 2d at 35

.

      In Fernandez, the Supreme Court further illuminated the

distinction between present and absent co-tenants by commenting

on the functional impact of the rule urged by the defendant in

that case.   

Id.

 at ___, 

134 S. Ct. at 1135-36

, 

188 L. Ed. 2d at 36

.   Dismissing the defendant’s contention that the prior

objection of an absent occupant should remain in effect for a

“reasonable” time, the Supreme Court noted the risk of

miscommunication, confusion and uncertainty that would arise if

an absent occupant’s objections were held to negate a co-

tenant’s valid consent.   

Id.

 at ___, 

134 S. Ct. at 1135-36

, 

188 L. Ed. 2d at 36-37

.   It held that “[i]f Randolph is taken at its

word –- that it applies only when the objector is standing in

the door saying ‘stay out’ when officers propose to make a

consent search –- all of these problems disappear.”   

Id.

 at ___,

134 S. Ct. at 1136

, 

188 L. Ed. 2d at 37

.   The Supreme Court thus

construed its prior holding in Randolph as unmistakably

requiring either the objector’s personal presence at his or her

home at the time of his or her objection, or his or her removal

from the residence during an encounter with police, before the

officers sought the co-tenant’s consent, as in Randolph.     The

United States Supreme Court chose a stark and simple test,

                                   9
identifying as the “controlling factor” for purposes of the

Fourth Amendment “situations in which the objecting occupant is

present” at the home.   

Id.

 at ___, 

134 S. Ct. at 1133

, 

188 L. Ed. 2d at 34

.

    In my view, this case clearly falls outside of the narrow

category of situations defined by the Supreme Court in Randolph

and Fernandez.   Here, the potentially objecting occupant was not

present at the home when the police arrived, or at any time

during the search.   Defendant was detained away from his

residence and it was only after his detention that he provided

the police with the name and address of his aunt.   He was absent

during the police communications with his aunt that led to her

consent to the search of the residence.    The Fernandez rule -–

which requires an objector to be present on the scene in order

for the valid consent of a co-tenant to be nullified -– is

simply not satisfied on these facts.

    In short, following Fernandez, I cannot reconcile the

majority’s holding with the United States Supreme Court’s

jurisprudence on this issue.   To the extent that the majority

concludes that its decision is supported by federal search and

seizure jurisprudence, I respectfully disagree.

                                II.



                                      10
    Until this decision, this Court has interpreted the

protection afforded by Article I, Paragraph 7 of the New Jersey

Constitution with respect to the issue before the Court to be

coextensive with the reach of the Fourth Amendment.    This Court

and the Appellate Division have repeatedly adopted and applied

the principles of 

Matlock, supra,

415 U.S. 164

, 

94 S. Ct. 988

,

39 L. Ed. 2d 242

 and Rodriguez, supra, 

497 U.S. 177

, 

110 S. Ct. 2793

, 

111 L. Ed. 2d 148

 in a variety of settings.     See, e.g.,

State v. Maristany, 

133 N.J. 299, 305

 (1993) (stating, in

reliance on Matlock and Rodriguez, that “[c]onsent may be

obtained . . . from a third party who possesses common authority

over the property, or from a third party whom the police

reasonably believe has authority to consent”) (internal

citations omitted);   State v. Suazo, 

133 N.J. 315, 320-21

 (1993)

(same); State v. Coyle, 

119 N.J. 194, 215

 (1990) (stating, in

reliance on Matlock, that third party with common authority over

residence can consent to search); State v. Crumb, 

307 N.J. Super. 204, 243

 (App. Div. 1997) (same), certif. denied, 

153 N.J. 215

 (1998).

    Indeed, in our unanimous decision on a residential consent

search in State v. Lamb, ___ N.J. ___ (2014), issued today, we

interpret our jurisprudence to be guided by and consistent with

Randolph and Fernandez.   Lamb arose from a setting different

                                  11
from that of this case.   There, an initially objecting co-tenant

was present at the scene, and then left the house, never

renewing his objection.   Id. at ___ (slip op. at 2).   It raises,

however, the same general issue as this case: the

constitutionality of a search conducted with the consent of one

occupant in light of the potential objection of another occupant

who shares authority over the premises.   Id. at ___ (slip op. at

9-10).   Relying on the United States Supreme Court’s decisions

in Fernandez and Randolph, the Court in Lamb rejected the

defendant’s argument that his stepfather’s objection to a search

consented to by his mother required suppression.    Id. at ___

(slip op. at 23-25).   The Court applied Fernandez to reject the

defendant’s expansive interpretation of Randolph.   Id. at ___

(slip op. at 25).

    Thus, in my view, the Court has properly embraced and

applied the United States Supreme Court’s analysis of this issue

in cases other than this one, up to and including today’s

decision in Lamb.   As this Court has noted, “we proceed

cautiously before declaring rights under our state Constitution

that differ significantly from those enumerated by the United

States Supreme Court in its interpretation of the federal

Constitution.”   Right to Choose v. Byrne, 

91 N.J. 287, 301

(1982) (citing State v. Hunt, 

91 N.J. 338, 344-45

 (1982)).       That

                                   12
“caution emanates, in part, from our recognition of the general

advisability in a federal system of uniform interpretation of

identical constitutional provisions.”    

Ibid.

   In the search and

seizure setting, “enforcement of criminal laws in federal and

state courts, sometimes involving the identical episodes,

encourages application of uniform rules.”    

Hunt, supra,

91 N.J. at 345

.

    When it has decided to afford more expansive rights under

the New Jersey Constitution than exist in federal law in a

search and seizure case, this Court has identified its reasons

for concluding that the decisions of the United States Supreme

Court do not adequately vindicate the constitutional right at

issue.    See, e.g., State v. Brown, 

216 N.J. 508, 528-29

 (2014)

(stating New Jersey’s rule regarding standing to file motion to

suppress); State v. Novembrino, 

105 N.J. 95, 157-58

 (1987)

(declining to recognize good-faith exception to exclusionary

rule); 

Hunt, supra,

91 N.J. at 345

 (articulating “[s]ound policy

reasons” for departure from federal law with respect to police

access to telephone billing records).   This case, I respectfully

submit, presents no reason for New Jersey search and seizure law

to deviate from Fourth Amendment jurisprudence.     Consistent with

the standard of objective reasonableness that governs Fourth

Amendment analysis, the Supreme Court’s holdings in Randolph and

                                   13
Fernandez require police officers to respect a present

occupant’s manifest objection to a search, but do not compel

them to engage in speculation about what an absent person would

have done or said, had he or she been at home when police

arrived.   With no “objector . . . standing in the door saying

‘stay out,’” in this case, 

Fernandez, supra,

571 U.S. at ___

,

134 S. Ct. at 1136

, 

188 L. Ed. 2d at 37

, the majority

necessarily assumes that had he been released, defendant would

have returned home immediately and objected to the search of the

residence -- notwithstanding the consent of his aunt, who was

evidently the senior member of a three-generation household.      In

my view, given the rapid decisions that must be made by law

enforcement as an investigation unfolds, the majority’s opinion

risks miscommunication and introduces uncertainty, which is

precisely what the Supreme Court sought to eliminate with the

bright-line rule announced in Fernandez.

    In sum, I would interpret Article I, Paragraph 7 in

alignment with the Fourth Amendment analysis set forth in

Randolph and Fernandez, and would accordingly reverse the

Appellate Division’s determination.     I respectfully dissent.




                                   14
                                   SUPREME COURT OF NEW JERSEY


     NO. A-15                                SEPTEMBER TERM 2012

     ON CERTIFICATION TO              Appellate Division, Superior Court




     STATE OF NEW JERSEY,

            Plaintiff-Appellant,

                    v.

     BYSEEM T. COLES,

            Defendant-Respondent.




     DECIDED                May 19, 2014
     Chief Justice Rabner                                   PRESIDING
     OPINION BY              Justice LaVecchia
     CONCURRING/DISSENTING OPINIONS BY
     DISSENTING OPINION BY                 Justice Patterson

                                    AFFIRM AS
      CHECKLIST                                            REVERSE
                                    MODIFIED
CHIEF JUSTICE RABNER                  X
JUSTICE LaVECCHIA                     X
JUSTICE ALBIN                         X
JUSTICE PATTERSON                                              X
JUDGE RODRÍGUEZ (t/a)                 X
JUDGE CUFF (t/a)                      X
       TOTALS                                                  1




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